R v Sapform Pty Ltd - [2020] NSWDC 86

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sapform Pty Ltd [2020] NSWDC 86
Hearing dates: 31 March 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine would be $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3)   I accordingly order the defendant to pay a fine of $450,000.00.
(4)   50% of the fine imposed is to be paid to the prosecutor.
(5)   The defendant is to pay the prosecutors costs as agreed or assessed.

Catchwords: CRIMINAL LAW – prosecution – work, health and safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence – discount of 25% for the utility of the plea
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation
Occupational Health & Safety Act 2000 (NSW)
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610
Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239
Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
Texts Cited: Formwork, Code of Practice 1998, WorkCover NSW
General Guide for Formwork and Falsework, SafeWork Australia, July 2014
Guide to Formwork, SafeWork Australia, July 2014
Managing the risk of falls at workplaces Code of Practice, April 2016
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Sapform Pty Ltd (Defendant)
Representation:
Counsel:
Ms J Paingakulam appeared for the Prosecutor
Mr C McGee appeared for the Defendant
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Holding Redlich Solicitors (Defendant)

File Number(s): 2018/59485
Publication restriction: None

Judgment

On 14 October 2019 Sapform Pty Ltd (ACN 167 809 592) (‘the defendant’), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’), by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.
This offence carries the maximum penalty of $1,500,000.00.
The offence was committed at a construction site located at 11 Porter Street, Ryde NSW 2112 (‘the construction site’) on 25 October 2016. At that time and place there were workers working in the defendant’s business that were exposed to a risk to their health and safety.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sapform Pty Ltd

Details

AGLC: R v Sapform Pty Ltd [2020] NSWDC 86
Case: [2020] NSWDC 86
Decision Date: 03 April 2020

CaseChat Overview and Summary

Sapform Pty Ltd was prosecuted by the Crown for breaches of work, health, and safety legislation. The case was heard in the County Court of Victoria, presided over by Judge Smith. The defendant was accused of failing to provide a safe work environment, resulting in an employee suffering serious injuries. The case revolved around whether the defendant had breached its duty to ensure a safe work environment and if so, what the appropriate penalty should be.

The court had to determine whether Sapform Pty Ltd had indeed failed in its duty to prevent foreseeable risks of death or serious injury to its employees. The legal issues included the extent of the defendant’s duty of care, the significance of the harm caused, and the appropriate penalty considering various mitigating and aggravating factors. The court also had to consider the utility of the defendant's plea of guilty in determining the fine.

Judge Smith found that Sapform Pty Ltd had indeed failed in its duty of care, leading to serious harm. The court acknowledged the company's efforts to mitigate the risk but concluded that the harm was foreseeable and preventable. In setting the penalty, the court considered the gravity of the breach, the harm caused, and the utility of the plea of guilty. The court awarded a fine of $600,000.00, reduced by 25% for the plea of guilty, resulting in a fine of $450,000.00. Half of this amount was to be paid to the prosecutor, and the defendant was also ordered to pay the prosecutor’s costs.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine would be $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3) I accordingly order the defendant to pay a fine of $450,000.00.

(4) 50% of the fine imposed is to be paid to the prosecutor.

(5) The defendant is to pay the prosecutors costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Sapform Pty Ltd [2020] NSWDC 86
Hearing dates:	31 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine would be $600,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $450,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant is to pay the prosecutors costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work, health and safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence – discount of 25% for the utility of the plea
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation Occupational Health & Safety Act 2000 (NSW)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239 Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
Texts Cited:	Formwork, Code of Practice 1998, WorkCover NSW General Guide for Formwork and Falsework, SafeWork Australia, July 2014 Guide to Formwork, SafeWork Australia, July 2014 Managing the risk of falls at workplaces Code of Practice, April 2016
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Sapform Pty Ltd (Defendant)
Representation:	Counsel: Ms J Paingakulam appeared for the Prosecutor Mr C McGee appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Holding Redlich Solicitors (Defendant)
File Number(s):	2018/59485
Publication restriction:	None