Farrell v Winona Way Pty Ltd as trustee for the Tea Tree Gully Hotel Trust trading as The Gully Public House & Garden [2026] SAET 33

1. Mr Distefano read his victim impact statement in court. He is a young man who worked in various roles on a casual and part-time basis from his mid teenage years and aspired to be a SANFL footballer and played junior and reserve grade football for Norwood and also played for Central Districts.
2. Mr Distefano stated that his burns had affected every aspect of his life. He can no longer be in the sun unprotected. As well as the damage the sun causes to his skin, he overheats because 80% of his sweat glands have been destroyed. He spent six months at the Royal Adelaide Hospital, was then referred to Hampstead Rehabilitation Hospital and has undergone surgery more than 25 times. He has lost his right-hand little finger and was advised to have the remaining half of his left-hand little finger amputated but refused through determination and thickheadedness to use his description.
3. Despite his injuries, or perhaps because of them, Mr Distefano trains for three to four hours every day. He said that he trains harder now than when he was trying to play SANFL football on a regular basis. He trained even when he had a temporary skin substitute on a large part of his body between surgeries. The training is necessary because without it, his skin will retract and limit his movement. Even Mr Distefano's mouth must be exercised by wearing a splint three times a day for 45 minutes a time to prevent the skin around his mouth getting tight and contracting. He had to wear full-body compression garments for 18 months after skin grafting. He also wore a neck brace for 18 months and still wears it while sleeping.
4. As a young man acutely aware of his health, Mr Distefano is alarmed by the medication he now needs to take which includes painkillers, medical cannabis and oil, heart medication and antihistamines. He has consumed a lot of opiate-based medication and is worried about its consequences. He explained that without medication, he would feel uncontrollable itching over his whole body. Mr Distefano's injuries are not only physical:

The daily medications I rely on come with serious and ongoing side effects that effect the majority of my body. The nerve painkillers cause agitation, irritability, depression, and even suicidal thoughts. I experience swelling and inflammation, breathing difficulties, blurred or double vision, and instability on my feet. Stopping them suddenly puts me at risk of seizures, nausea, nightmares, and severe withdrawal symptoms. Some medications even increase the chance of blood disorders or future cancers. Others, like Allegron, have led to anxiety, dizziness, sexual dysfunction, and a significant drop in sex drive, affecting future relationships and the possibility of having children. My heart medication, Apo-Propanolol, carries long-term risks of heart, kidney, and brain damage, with studies suggesting potential links to dementia. Even seemingly simple medications like antihistamines can cause liver issues, mood changes, and dependency if stopped abruptly. On top of this, I use constant moisturisers and sunscreens to protect my fragile skin, which weakens it over time and allows chemicals to be absorbed into my bloodstream. Living with these risks and side effects has become a daily balancing act, one that constantly reminds me how far from a normal life I now live.

1. Mr Distefano also described the physical and mental effect his injuries have had on his sleep. He has had nightmares, night terrors and has cried himself to sleep on many nights. He described having mood swings and feeling abnormally aggressive. He recounted a three-day period in which he slept for one hour and was convinced he would die on the third day if he did not sleep.
2. Mr Distefano described having anxiety for many weeks after being taken out of a medically induced coma because it was not known whether he could have children. He also described being deeply upset by his mother's reaction to his injuries and how they have caused her deep grief and worry.
3. Mr Distefano was filmed whilst he was being burnt and the footage was broadcast on an evening news bulletin. Mr Distefano's father and others learned that he had been horrifically injured whilst watching television:

Many of my family members and hundreds of friends watched and listened to my screams of agony while I was completely engulfed in flames on local and national TV, without warning. They can never unsee or unhear them. They remind me of this whenever I see them after an extended period, which brings tears of anger and resentment to my eyes.

1. Despite what he has been through, Mr Distefano has resolved to try and forgive those responsible for his injuries and move forward with his life. His goal is to play SANFL football despite knowing how difficult that will be.

1. The Informant submitted that the offending was objectively very serious given the potential for serious injury and death that materialised for a risk that had been present for 14 years. The burner was installed in 2009.
2. The Informant contended that the inherent risk of death and serious injury associated with the task involving the use of highly flammable liquid should have been obvious, identifiable and foreseeable. The life changing injuries that Mr Distefano sustained were said to be a clear manifestation of the risk that was present. There was also the very real potential for the injuries to have resulted in death. There were two distinct contraventions of the duty which were both serious contraventions.
3. The first failure by the Defendant was a failure to perform an adequate hazard identification and risk assessment process in relation to using the burner. The Defendant was unable to produce any form of risk assessment documentation in relation to the burner. The Defendant did produce an Incident Report Form in which it acknowledged that the lack of a documented process for refuelling the burner, the absence of the manufacturer's instructions and the lack of supervision, all of which contributed to the incident. The Defendant was unable to produce any form of written policy or procedure (such as a Standard Operating Procedure or a documented safe use policy) in relation to the burner.
4. The lack of any documentation, policy or procedure suggests that the Defendant was simply unaware of the requirement to undertake any form of hazard and risk assessment in relation to the task of refuelling the burner. As a consequence, the Defendant failed to adequately identify any hazards and assess any risks associated with the task. It was submitted that an adequate hazard identification and risk assessment process should have identified the obvious risks of explosion and fire associated with refuelling the burner using a flammable liquid. The most obvious way to eliminate or minimise risk was to comply with the manufacturer's safety instructions by using the manufacturer's authorised standard accessories and equipment when undertaking the task. The reasonably practicable steps to safely complete the task are clearly set out in the operating manual, which the Defendant did not have, but could have accessed via the internet.
5. The Informant submitted that the Defendant's second failure was to not provide adequate information, training and instruction to its workers to enable them to safely undertake the task. Mr Distefano's induction only covered general requirements and routine WHS issues. Mr Distefano was only provided with a walk though by the venue manager which included a demonstration on how to refuel the burner and a caution about filling up if there was any flame. The induction and training provided were inadequate to enable Mr Distefano to safely refuel the burner.
6. The Informant submitted that general deterrence should feature in relation to penalty. Specific deterrence is less important as there was only one burner at the Gully and it was removed after the incident, but it is still a relevant consideration. It was submitted that the scale of the Defendant's operation means that a fine is unlikely to have the damaging impact on the Defendant that it would on a small business.
7. As a plea of guilty was entered within four weeks of the first court appearance, the Informant submitted that the sentence imposed can be reduced by up to 40% under s 39(2)(a) of the Sentencing Act 2017 (Sentencing Act). In terms of relevant qualitative factors, the degree of contrition shown and the Defendant's conduct after the offending are relevant. It was acknowledged that the Defendant co-operated with the investigation and does not have any relevant criminal history.

1. The Defendant referred to ss 17, 18 and 19 of the Sentencing Act. It accepted that there was a foreseeable risk to safety, that it was likely that the risk would eventuate and that the gravity of the potential risk was serious and the control measures described in paragraphs 1.2.2.3, 1.2.3.1 and 1.2.3.3 of the summons were reasonably practicable to adopt.
2. The Defendant submitted that it had expressed profound contrition. The senior management team of the RD Jones Group attended the hearing.
3. The Defendant offered financial assistance of $20,000 to Mr Distefano's parents whilst he was still in a coma. Mr Distefano was upset by the offer as he thought that it was intended to discharge the Defendant's liability to him. The Defendant explained that the offer was not an attempt to curtail Mr Distefano's rights but was intended to provide some financial support for him and his family at a very difficult time. The Defendant provided affidavit evidence to that effect to the Court. I accept that evidence.
4. The Defendant submitted that it did not lack an approach to managing risks, and consequently, its offending should not be taken to fall within the high range. The Defendant accepted that it ought to have undertaken the measures described above. On that basis, the Defendant submitted that the degree of criminality involved is in the mid-range.

1. The agreed facts are accepted as evidence and I find them proven beyond a reasonable doubt.
2. The burner does not provide warmth but is purely for visual effect. There is a plate on the burner which states that before the unit is installed or operated, instructions at www.ecosmartfire.com should be read. The Ecosmart Installation, Operation and Maintenance Manual (Manual) is included in the agreed Book of Documents in evidence before the Court. The manual contains general safety warnings as well as specific warnings in relation to refuelling. The second warning in the Manual comes under the heading "EXPLOSION/FIRE HAZARD" and states:[1]

Shut appliance off and allow to cool for 60 minutes before refueling. Flame may be difficult to see - do not assume appliance is off. Always follow shut-off procedure before refueling.

1. The first warning states that any fuel other than e-NRG Bioethanol should not be used, and gasoline should never be used to fuel the burner. The Defendant tendered a report dated 31 July 2025 of Dr Thomas Fallon, a lecturer of Organic Chemistry at the University of Adelaide (as it was then known). Dr Fallon opined that e-NEG Bioethanol and Aitken Methylated Spirits have exceedingly similar chemical makeups and may be identical in composition. Any minor difference between the two would result in a negligible difference in their flammability profile. The Informant did not challenge that evidence. I find that the use of methylated spirits rather than e-NRG Bioethanol made no difference to the explosion and flames that caused Mr Distefano's injuries.
2. When the burner was purchased in 2009, it included some standard equipment required to operate it safely including the Manual, a copy of which is in the Agreed Book of Documents, a five-litre jerrycan with a safety spout, a lighting rod and a lighter. The Manual contains a number of general safety warnings as well as specific warnings in relation to refuelling.
3. The Manual states that the burner should never be filled with a vessel that does not have a "Spill Proof Safety Spout attached",[2] repeats the warning that the burner should be allowed to cool before it is refuelled, that is to only be refuelled through the filling point,[3] and advises that the flip lid on the XL Series is used to extinguish the flame.[4]
4. The burner was refuelled by another employee of the Defendant at 4.46pm on 2 June 2023. It was ignited five minutes later at 4.51pm. Nineteen minutes after that, the burner was observed to have no visible flame, and ten minutes later, Mr Distefano was directed to refuel the burner. The burner was therefore refuelled within about 30 minutes of being used, not the minimum of 60 minutes stated in the Manual.
5. The Statement of Agreed Facts provides that while it is not clear what caused the flash flame explosion, it was either because the burner had not cooled sufficiently at the time when Mr Distefano added fuel to it, or a small flame remained and ignited the fuel when it was added. If the latter scenario is what occurred, the residual flame could have been extinguished by using the flip lid mechanism before refuelling was undertaken. Mr Distefano was not instructed how to use the flip lid mechanism. I am satisfied and find that one of the two potential explanations, or a combination of both, is why the fuel ignited.
6. In Campbell v H&T Cook Enterprises and Cook,[5] Cole DPM said the following about burn injuries sustained by an employee who refuelled an ethanol burner:[6]

Given the safety requirements for the use and refuelling of the burner, it may be questioned whether the burner is a suitable piece of equipment in a business such as a café, where a number of people may from time to time attend to the use and refuelling of the burner. If every safety instruction was complied with on every occasion of refuelling, little, if any risk, would arise. However, the potential for an employee to not follow all of the safety instructions is real, whether that be because of inadvertence, tiredness, haste or for some other reason.

1. I endorse and adopt those comments. The burner was inherently dangerous to use in a hotel without its instructions being adhered to.
2. I accept that the Defendant developed and modified its policies and procedures in relation to safety over the years and that quarterly safety meetings were attended by management. I asked whether there was any evidence of meetings with, and briefings to, staff in relation to safety. The response was that a fortnightly sit-down meeting takes place between the manager of each venue and each department manager in the venue. Examples given included explaining the operation of certain equipment, like something new in the kitchen, or a new type of gaming machine with very heavy and secure doors at the back. Following those meetings, duty managers meet with affected workers and convey information. The process is however not documented.
3. While I accept that the Defendant takes an active approach to safety, the flow of information is one-way. WHS information is disseminated from senior management to middle management and then to staff and does not encourage staff to raise and report potential WHS issues and concerns or guarantee that a report of that kind would reach senior management. The system may be improved by encouraging staff to raise an issue with procedures or equipment that they find troublesome, potentially dangerous or do not know how to fully operate. Risks and safety issues are usually encountered first-hand by staff rather than management. Good risk management invites active and honest input from staff in relation to potential WHS risks and issues. In this case the person who refuelled the burner before Mr Distefano appears to not have filled the tank fully given the burner needed refuelling about half an hour later. Had a question been asked about how to properly refuel the burner, the Manual may have been found.
4. The offence should be treated as falling within the high range. Whilst the Defendant had safety systems and procedures in place, no attention was paid to the risk of operating and refuelling a piece of equipment that produced a naked flame and was regularly refuelled. There was a failure to train employees in relation to how to refuel the burner, a failure to supervise the refuelling process and a failure to ensure or attempt to ensure that the manufacturer's instructions were followed and any necessary accessories, such as the spill proof safety spout, were used.
5. Section 11 of the Sentencing Act describes the factors taken into account when sentencing. The relevant factors for a corporate entity here are:
   • the nature, circumstances and seriousness of the offence;
   • whether substantial harm was caused;
   • any previous convictions, the prospects of rehabilitation and the likelihood of reoffending;
   • whether there is genuine remorse;
   • the maximum penalty;
   • the offender's capacity to pay a fine.
6. In addition to those matters, regard must also be had to general deterrence and specific deterrence.
7. The circumstances of the offence are described above. The offending is objectively serious. Adherence to a clearly expressed operation manual when dealing with a piece of equipment that produces a naked flame is to be expected. Objectively speaking, the burner is more dangerous than a gas space heater which shields its flame from direct contact.
8. Substantial harm was caused by the offending. The injuries sustained by Mr Distefano are very serious and have altered almost every aspect of the life that he used to lead and would otherwise have continued to lead.
9. There are no relevant prior convictions. There is no likelihood of an offence of the same nature being committed given the removal of the burner and the Defendant did not intend to commit a WHS offence in any case. The risk of reoffending is therefore minor.
10. I am satisfied that the remorse expressed by the Defendant is genuine. It was expressed in an affidavit and read out in court. The Defendant acknowledged the anger that Mr Distefano must feel and the failings of the Defendant that led to that anger and to his predicament. The expression of remorse extended to Mr Distefano's family and also acknowledged the damage caused to them.
11. As the Defendant is a corporate entity, the maximum penalty for the offence is a fine of $1,500,000. The Defendant has the capacity to pay a fine in the range usually imposed for an offence of this type.
12. General deterrence is an important consideration on these facts. A simple measure such as following the warnings in the instruction manual for an item that produces a naked flame would have avoided the incident. The fact that a similar burner produced similarly devasting and disfiguring injuries in Cook highlights the important role of general deterrence in this case.
13. I accept the Defendant's submission that specific deterrence does not play a major role in this sentencing exercise.
14. It is appropriate to record a conviction and impose a fine as a penalty.
15. The parties referred to several authorities in relation to the fine that should be imposed. In Cook, the burns sustained were not as extensive as they are in this case. A fine was not imposed on the first defendant, a business, because it had ceased trading and had no assets. Cole DPM said that if a penalty was imposed it would have been $110,000 before any discount. A $30,000 penalty was ordered against the second defendant, a director of the first defendant, before discount.
16. In Farrell v Mitolo Group Pty Ltd,[7] the injured party was crushed by a forklift at work and sustained serious injuries. A fine of $300,000 before discount was imposed.
17. In Farrell v Nippy's Waikerie Producers Pty Ltd,[8] the injured party sustained a serious injury. The fine imposed before discount was $200,000, however Eaton DPM noted that the defendant had made financial reparation in the sum of $60,0000, and that appears to have been taken into account in fixing penalty.
18. A fine of $250,000 is imposed.
19. As the Informant acknowledged, there is no impediment to awarding the full discount available. Having regard to the Defendant's cooperation with the investigation of the offence and its genuine contrition about what occurred, it is appropriate to discount the fine by 40%.
20. While s 124 of the Sentencing Act provides that compensation for injury, loss or damage resulting from an offence can be ordered, the provision excludes the entitlement where there is an entitlement to compensation under the Return to Work Act 2014, which there is in this case. Through counsel for the Informant, Mr Distefano advised that he did not seek compensation under s 124.

1. A conviction is recorded against the Defendant.
2. The Defendant is fined the sum of $150,000.
3. The Defendant is to pay the Informant's costs in the sum of $1,210.
4. The Defendant is to pay a victims of crime levy in the sum of $451.

[1] Agreed Book of Documents 40, Manual 3.

[5] [2020] SAET 241.

[7] [2025] SAET 26.

[8] [2023] SAET 56.