R v Truslan Constructions Pty Ltd - [2019] NSWDC 321

District Court

New South Wales

Medium Neutral Citation: R v Truslan Constructions Pty Ltd [2019] NSWDC 321
Hearing dates: 30 April 2019
Date of orders: 12 July 2019
Decision date: 12 July 2019
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1)   The offender is convicted.
(2)   The appropriate fine is $600,000.00 but that will be reduced by 25% to reflect a plea of guilty.
(3)   Order the offender to pay a fine of $450.000.00
(4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.
(5)   I order the offender to pay the prosecutors costs in the sum of $32,500.00.

Catchwords: CRIMINAL LAW – prosecution – Work, Health & Safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
Cases Cited: 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
WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Truslan Constructions Pty Ltd (Defendant)
Representation:
Counsel:
R Reitano appeared for the Prosecutor
N D Read appeared for the Defendant
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Stephen Booth, Coleman Greig Lawyers (Defendant)

File Number(s): 2018/59382
Publication restriction: None

Judgment

On 25 October 2016 Truslan Constructions Pty Ltd (‘the offender’), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (‘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 offender’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 offender’s business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Mr Iremar Da Silva (‘Mr Da Silva’) who, as a result of being exposed to the risk, was fatally injured when the risk came home.
The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

BACKGROUND

At all material times the offender (formerly known as KNT Constructions Pty Ltd) (ACN 601 696 379) was a person conducting a business or undertaking within the meaning of s 5 the Act. The registered address of the offender was…

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.

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Details

Case: [2019] NSWDC 321
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Truslan Constructions Pty Ltd, the Federal Court was tasked with determining the outcome of a prosecution related to breaches of Work, Health & Safety laws. The company had been charged with failing to discharge its duty as a person undertaking a business or undertaking, resulting in a risk of death or serious injury to employees. This case revolved around the company's alleged failure to provide a safe working environment, which ultimately led to the prosecution.

The primary legal issues that the court had to address were whether the company breached its duty under the relevant legislation and, if so, the appropriate penalty to be imposed. The court had to consider various factors, including the nature and extent of the breach, the potential harm that could have resulted, and both aggravating and mitigating circumstances. The court also needed to balance the objectives of specific deterrence, aiming to prevent the offender from repeating the offence, and general deterrence, which seeks to discourage others from committing similar offences.

Upon reviewing the evidence and considering the arguments presented by both parties, the court found the company guilty of the charges. The court acknowledged the seriousness of the breach and the potential consequences it could have had on the employees. In determining the penalty, the court took into account the plea of guilty, which resulted in a 25% reduction in the fine. The court also considered the company's financial situation, its previous compliance history, and its efforts to rectify the issues. After weighing all these factors, the court imposed a fine of $450,000.00, with 50% of that amount to be paid to the prosecutor. Additionally, the company was ordered to pay the prosecution's costs, amounting to $32,500.00.

The court's final orders included the conviction of the offender, the imposition of a fine of $450,000.00, the requirement for 50% of that fine to be paid to the prosecutor, and the payment of prosecution costs in the sum of $32,500.00. The court's decision aimed to serve both specific and general deterrence, while also taking into account the unique circumstances of the case.

Orders

Orders of the court

(1) The offender is convicted.

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

(3) Order the offender to pay a fine of $450.000.00

(4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.

(5) I order the offender to pay the prosecutors costs in the sum of $32,500.00.

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

Full text does not contain this section.

Medium Neutral Citation:	R v Truslan Constructions Pty Ltd [2019] NSWDC 321
Hearing dates:	30 April 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The offender is convicted. (2) The appropriate fine is $600,000.00 but that will be reduced by 25% to reflect a plea of guilty. (3) Order the offender to pay a fine of $450.000.00 (4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5) I order the offender to pay the prosecutors costs in the sum of $32,500.00.
Catchwords:	CRIMINAL LAW – prosecution – Work, Health & Safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011
Cases Cited:	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 WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Truslan Constructions Pty Ltd (Defendant)
Representation:	Counsel: R Reitano appeared for the Prosecutor N D Read appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Stephen Booth, Coleman Greig Lawyers (Defendant)
File Number(s):	2018/59382
Publication restriction:	None