Safe Work (NSW) v Action Concreting and Constructions Pty Ltd - [2017] NSWDC 191

District Court

New South Wales

Medium Neutral Citation: Safe Work (NSW) v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191
Hearing dates: 20 July 2017
Date of orders: 31 July 2017
Decision date: 31 July 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted.
2 I impose a fine of $27,000.
3 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4 I order that the offender pay the prosecutors costs as agreed in the sum of $13,000.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – fall from height – lack of edge protection – control measures
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment
COSTS – prosecution costs
Legislation Cited: Work Health and Safety Act 2011 s.19
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(i), 21A(3)(k), 21A(3)(m),
Fines Act 1996 ss. 6, 122(2)
Cases Cited: R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
R v Tuala [2015] NSWCCA 8
R v Youkhana [2004] NSWCCA 412
Category: Sentence
Parties: Safe Work NSW (Prosecutor)
Action Concrete and Constructions Pty Ltd (Offender)
Representation:
Counsel:
Ms E James (Prosecutor)
Mr I Latham (Offender)
Solicitors:
Safe Work NSW (Prosecutor)
Kells (Offender)

File Number(s): 2016/00036604
Publication restriction: None

Judgment

Action Concreting and Constructions Pty Ltd (Action or the offender) appears for sentence after it pleaded guilty on 13 February 2017 to an offence to an offence contrary to section 32 Work Health and Safety Act 2011 (the Act) of failing to comply with its health and safety duty and thereby exposing Dragan Gaica to a risk of serious injury or death.
The maximum penalty for the offence is a fine of $1.5 million.
I have previously sentenced a co-offender, Kazoo Aquasports Pty Ltd (Kazoo) in respect of the same incident. It should be noted that the agreed facts were significantly different in each matter. I have proceeded to sentence Action on the basis of the agreed facts in this matter and on the basis of the prosecutor’s concession which I will come to later.

The facts

The parties presented an Agreed Statement of Facts [1] that can be summarised as follows.
1. Together with a Further Agreed Fact.
Action entered into an oral contract with Kazoo to carry out steel fixing and formwork on the construction of a multi-storey residential building at 26A Hudson Avenue, Clareville (the site). Kazoo was the principal contractor at the site and day to day supervision of the site was undertaken…

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: [2017] NSWDC 191
Decision Date: 31 July 2017

CaseChat Overview and Summary

Safe Work (NSW) brought a prosecution against Action Concreting and Constructions Pty Ltd for alleged breaches of work health and safety obligations. The dispute arose from an incident where a worker fell from a height due to a lack of edge protection at a construction site. The matter was heard by the Local Court of New South Wales. The primary legal issues involved the obligations of the employer under work health and safety laws, the adequacy of control measures to prevent serious injury, and the appropriate penalty to be imposed for the breaches.

The court was required to determine whether the employer had breached its duty to ensure, as far as reasonably practicable, the health and safety of its workers. Specifically, it assessed whether the employer had implemented sufficient control measures to mitigate the risk of a fall from height. The court also had to consider the principles of sentencing, including the objective seriousness of the offence, the need for deterrence, and the offender's capacity to pay. In doing so, the court considered the totality principle, ensuring the penalty was appropriate within the context of other penalties for similar offences, and the principles of parity and community values.

The court found that the employer had indeed breached its duty, as there was a significant risk of death or serious injury due to the absence of edge protection. The control measures in place were inadequate, and the employer failed to take reasonable steps to protect the worker. The court imposed a fine of $27,000, ordering that 50% of the fine be paid to the prosecutor. Additionally, the employer was required to pay the prosecution costs of $13,000. The court considered various factors, including the objective seriousness of the breach, the need for deterrence, and the employer's capacity to pay, in arriving at the penalty.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a fine of $27,000.

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

4 I order that the offender pay the prosecutors costs as agreed in the sum of $13,000.

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:	Safe Work (NSW) v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191
Hearing dates:	20 July 2017
Date of orders:	31 July 2017
Decision date:	31 July 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 I impose a fine of $27,000. 3 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 I order that the offender pay the prosecutors costs as agreed in the sum of $13,000.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – fall from height – lack of edge protection – control measures SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment COSTS – prosecution costs
Legislation Cited:	Work Health and Safety Act 2011 s.19 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(i), 21A(3)(k), 21A(3)(m), Fines Act 1996 ss. 6, 122(2)
Cases Cited:	R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Tuala [2015] NSWCCA 8 R v Youkhana [2004] NSWCCA 412
Category:	Sentence
Parties:	Safe Work NSW (Prosecutor) Action Concrete and Constructions Pty Ltd (Offender)
Representation:	Counsel: Ms E James (Prosecutor) Mr I Latham (Offender) Solicitors: Safe Work NSW (Prosecutor) Kells (Offender)
File Number(s):	2016/00036604
Publication restriction:	None