SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306

SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306

The risk of workers being struck by the suspended tray was foreseeable, the potential consequences were death or serious injury, the likelihood of the risk occurring was significant because inadequate equipment was used and no exclusion zone was maintained, and simple well-known measures were readily available at little burden. Tunny had no real safety system, risk assessment, safe work procedure, training or exclusion-zone system. Mr Waring, despite being sole director and receiving financial benefit, exercised no diligence to ensure compliance with safety obligations. Both offenders' culpability was in the mid range. Mitigating factors, including early guilty pleas, justified a 25%...

Jurisdiction
Australia
Judgment Date
03 August 2022
Procedural Posture
Criminal Work Health and Safety Prosecution / Sentence After Pleas of Guilty
Outcome
Tunny Pty Ltd and Aidan Arthur Waring were convicted and fined; each was ordered to pay the prosecutor's costs, and 50% of each fine was ordered to be paid to the prosecutor.
Legal Topics
['category 2 Work Health and Safety Offence' 'duty of Person Conducting a Business or Undertaking' 'duty of Officers' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' 'capacity to Pay Fine' 'application for No Conviction' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['category 2 Work Health and Safety Offence' 'duty of Person Conducting a Business or Undertaking' 'duty of Officers' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' 'capacity to Pay Fine' 'application for No Conviction' 'prosecution Costs']

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Procedural Posture

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

Legal Issues

  1. 1 ['What penalty should be imposed on Tunny Pty Ltd for failing to comply with its work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) contrary to s 32 of the Act.' 'What penalty should be imposed on Aidan Arthur Waring for failing to exercise due diligence as an officer under s 27(1) of the Work Health and Safety Act 2011 (NSW) contrary to s 32 of the Act.' 'Whether Mr Waring should receive an order dismissing the charge without conviction or a conviction without further penalty.' "Whether the fines should be reduced because of the offenders' capacity to pay." 'Whether orders should be made for part of the fines to be paid to the prosecutor and for prosecution costs.']

Ratio Decidendi

The risk of workers being struck by the suspended tray was foreseeable, the potential consequences were death or serious injury, the likelihood of the risk occurring was significant because inadequate equipment was used and no exclusion zone was maintained, and simple well-known measures were readily available at little burden. Tunny had no real safety system, risk assessment, safe work procedure, training or exclusion-zone system. Mr Waring, despite being sole director and receiving financial benefit, exercised no diligence to ensure compliance with safety obligations. Both offenders' culpability was in the mid range. Mitigating factors, including early guilty pleas, justified a 25%...

Court Disposition

Tunny Pty Ltd and Aidan Arthur Waring were convicted and fined; each was ordered to pay the prosecutor's costs, and 50% of each fine was ordered to be paid to the prosecutor.

Orders

  • ['In District Court proceedings 2021/00091503, Tunny Pty Ltd was convicted on 26 July 2022.' 'The appropriate fine for Tunny Pty Ltd is $160,000, reduced by 25% to reflect the early plea of guilty.' 'Tunny Pty Ltd is ordered to pay a fine of $120,000.' "Pursuant to Section 122(2) of the Fines Act 1996 (NSW), 50% of...