The defendant, an officer and sole director of a corporation conducting biogas experiments, was convicted of failing to exercise due diligence to ensure the corporation's compliance with its primary WHS duty, where the failure exposed a worker to a risk of death or serious injury (s 32 of the Work Health and Safety Act 2011 (NSW)), and was fined $195,500 (being $230,000 reduced by 15% for a late guilty plea), with 50% payable to the prosecutor plus the prosecutor's costs. The court declined a s 10 dismissal, holding the offence was not trivial given the defendant's repeated failure over seven weeks to implement any safety management system against a known lethal hazard despite multiple warnings from workers, the availability of straightforward and inexpensive controls, and the severe injuries sustained by the exposed worker. The judgment reaffirms that an officer's WHS duty is non-delegable and cannot be discharged by relying on the expertise of employees, and that where a defendant fails to adduce detailed financial evidence, the court will decline to exercise its discretion to reduce a fine for impecuniosity under s 6 of the Fines Act 1996 (NSW).
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