SafeWork NSW v Hubtex Australia Pty Ltd [2021] NSWDC 664

SafeWork NSW v Hubtex Australia Pty Ltd [2021] NSWDC 664

The s 32 offence had objective gravity because the offender knew of the risk of incorrect use of hazardous chemicals, failed to store and label the brake cleaner properly, made it readily available to an inexperienced young worker, and simple, well known and inexpensive steps could have minimised the risk. The s 38 offence was of low objective gravity because the delay was about 48 hours and the offender reported the incident before it came to the regulator's notice, although its safety manual referred to the reporting obligation. Substantial injury, harm and loss was established for the s 32 offence, but the vulnerable victim aggravating factor was not established beyond reasonable...

Jurisdiction
Australia
Judgment Date
08 December 2021
Procedural Posture
Criminal Work Health and Safety Prosecution / Sentence After Plea of Guilty
Outcome
Hubtex Australia Pty Ltd was convicted and fined a total of $124,000, with costs payable to the prosecutor and 50% of the fine ordered to be paid to the prosecutor.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Notify Regulator Immediately After Notifiable Incident' 'objective Seriousness' 'deterrence' 'aggravating Factors' 'mitigating Factors' 'plea of Guilty']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Notify Regulator Immediately After Notifiable Incident' 'objective Seriousness' 'deterrence' 'aggravating Factors' 'mitigating Factors' 'plea of Guilty']

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Procedural Posture

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

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's contravention of s 32 Work Health and Safety Act 2011 by failing to comply with its health and safety duty and exposing a worker to a risk of death or serious injury." "What penalty should be imposed for the defendant's contravention of s 38 Work Health and Safety Act 2011 by failing to notify the regulator immediately after the incident." 'Whether the injuries, harm and loss caused by the s 32 offence were substantial for the purposes of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.' 'Whether the victim was vulnerable for the purposes of s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.' 'What discount should be allowed for the plea of guilty.']

Ratio Decidendi

The s 32 offence had objective gravity because the offender knew of the risk of incorrect use of hazardous chemicals, failed to store and label the brake cleaner properly, made it readily available to an inexperienced young worker, and simple, well known and inexpensive steps could have minimised the risk. The s 38 offence was of low objective gravity because the delay was about 48 hours and the offender reported the incident before it came to the regulator's notice, although its safety manual referred to the reporting obligation. Substantial injury, harm and loss was established for the s 32 offence, but the vulnerable victim aggravating factor was not established beyond reasonable...

Court Disposition

Hubtex Australia Pty Ltd was convicted and fined a total of $124,000, with costs payable to the prosecutor and 50% of the fine ordered to be paid to the prosecutor.

Orders

  • ['Hubtex Australia Pty Ltd is convicted.' 'I impose fines in the total sum of $124,000.' "The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed." 'I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.']