SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314

SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314

The offence warranted a mid-range penalty because the defendant had a non-delegable work health and safety duty, the risk of a worker being struck or crushed by a 275 to 290 kilogram belly plate was obvious, foreseeable and extreme, simple and inexpensive controls such as a safe work procedure, training, inspection of the wire rope and secondary support were available, and the defendant failed to ensure the correct rope was fitted and failed to train or instruct Mr Basedow. The serious injuries aggravated the offence, while the defendant's early guilty plea, good record, remorse, cooperation, assistance to Mr Basedow, corporate citizenship and extensive remedial action mitigated penalty....

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Criminal Prosecution for an Offence Contrary to Section 32 of the Work Health and Safety Act 2011 (nsw) by Failing to Comply With the Duty Imposed by Section 19(1) / Sentence Following Guilty Plea
Outcome
Defendant convicted and fined $375,000 after a 25% discount for the guilty plea; 50% of the fine ordered to be paid to the prosecutor; defendant ordered to pay agreed prosecutor's costs of $40,000.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'objective Seriousness' 'aggravating and Mitigating Factors' 'guilty Plea Discount' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'objective Seriousness' 'aggravating and Mitigating Factors' 'guilty Plea Discount' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for an Offence Contrary to Section 32 of the Work Health and Safety Act 2011 (nsw) by Failing to Comply With the Duty Imposed by Section 19(1) / Sentence Following Guilty Plea

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's failure to comply with its work health and safety duty and exposure of workers to a risk of death or serious injury." 'Whether the offence fell within the low range or mid-range of objective seriousness.' "What weight should be given to general deterrence, specific deterrence, the defendant's good record, guilty plea, remorse, cooperation, post-incident remedial steps and the injuries sustained by Mr Basedow."]

Ratio Decidendi

The offence warranted a mid-range penalty because the defendant had a non-delegable work health and safety duty, the risk of a worker being struck or crushed by a 275 to 290 kilogram belly plate was obvious, foreseeable and extreme, simple and inexpensive controls such as a safe work procedure, training, inspection of the wire rope and secondary support were available, and the defendant failed to ensure the correct rope was fitted and failed to train or instruct Mr Basedow. The serious injuries aggravated the offence, while the defendant's early guilty plea, good record, remorse, cooperation, assistance to Mr Basedow, corporate citizenship and extensive remedial action mitigated penalty....

Court Disposition

Defendant convicted and fined $375,000 after a 25% discount for the guilty plea; 50% of the fine ordered to be paid to the prosecutor; defendant ordered to pay agreed prosecutor's costs of $40,000.

Orders

  • ['The defendant is convicted.' 'The appropriate fine for the defendant would be $500,000.00 and that will be reduced by 25% to reflect a plea of guilty.' 'The defendant is to pay a fine of $375,000.00.' '50% of the fine imposed is to be paid to the prosecutor.' "The defendant is to pay the prosecutor's costs agreed...