Details of successful prosecution against E246365 - Individual 1

Incident description

The defendant held duties under s.19 of the Work Health and Safety Act 2011 being an individual in partnership with his wife. His business included contract harvesting of sugar cane.

On Saturday 19 August 2017 a worker received a serious injury when he was burnt in a standing sugar cane and sugar cane “trash” controlled burn at a sugar cane farm. He required multiple skin grafts and further laser surgery on his thumbs to regain full movement and has suffered a psychological injury as a result of the incident.

On 17 July 2019 the defendant pleaded guilty in the Ayr Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011. The matter proceeded as a sentence hearing on that date, with the Magistrate reserving his decision until 15 August 2019.

Court result

On 15 August 2019 Magistrate Wadley fined the defendant $35,000 and ordered professional and court costs totalling $1,596.15. The court ordered that no conviction be recorded.

In deciding penalty, Magistrate Wadley took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.

The Magistrate stated the means of determining penalty was balancing the offending against the duty in s.19 (considering the principles of objective seriousness outlined in Nash v Silver City Drilling [2017] NSWCCA 960 and s.9 of the Penalties and Sentences Act 1992). The Magistrate found the possible consequences of the standing sugar cane fire and the trash blanket fire were clearly death or serious injury. The probability of such a consequence was obvious and not remote. The steps that could have been taken to prevent or minimise the incident were readily available and not difficult to implement and included the possible use of two-way radios, PPE, simple procedures to coordinate the two fires and communication.

There was a need for general deterrence and less need for specific deterrence for the defendant. The Magistrate found the objective seriousness was at least in the mid-range and the hazard could easily have caused death. The defendant was otherwise of good character, he had been a sugar cane farmer for over 45 years and had not had a similar incident in that time. The plea was at the first available opportunity, the defendant had shown remorse and had the capacity to pay a fine.

Details