Safe Work NSW v Ceerose Pty Ltd - [2017] NSWDC 313

District Court

New South Wales

Medium Neutral Citation: Safe Work NSW v Ceerose Pty Ltd [2017] NSWDC 313
Hearing dates: 25 October 2017
Date of orders: 13 November 2017
Decision date: 13 November 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted.
2 I impose a fine of $300,000.
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 or assessed.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker
SENTENCE – mitigating factors – aggravating factors – fine – 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
OTHER – injuries to victim – pelvic injuries – thoracic vertebrae injury – rehabilitation of victim – ongoing difficulties
Legislation Cited: Work Health and Safety Act 2011 s.19(2), 32
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(d), 21A(2)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m)
Fines Act 1996 ss. 6, 122(2)
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
R v McNaughton (2006) 66 NSWLR 566
R v Youkhana [2004] NSWCCA 412
R v Tuala [2015] NSWCCA 8
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence
Parties: Safe Work NSW (Prosecutor)
Ceerose Pty Ltd (Offender)
Representation:
Counsel:
Ms P McEinery (Prosecutor)
Mrs W Thompson (Offender)
Solicitors:
Safe Work NSW (Prosecutor)
DLA Piper Australia (Offender)

File Number(s): 2016/00189601
Publication restriction: None

sentence

Ceerose Pty Ltd (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Jennifer Lipperts to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.

Facts

The parties presented an Agreed Statement of Facts that can be summarised as follows.
The offender operated a construction management business and was the principal contractor for construction work (the work) on a site situated on the corner of Barr Street and Pyrmont Bridge Road, Camperdown (Barr Street site). The offender was also contracted to undertake remediation work on a site situated at 19-25 Lyons Road Camperdown (Lyons Road site).
In about August 2014 the offender took control of the Barr Street site and only had access to the Lyons road site for parking until it took full control of the Lyons Road site in late February 2015.
The Lyons Road site had been used by previous tenants for parking and storage and was secured…

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 313
Decision Date: 13 November 2017

CaseChat Overview and Summary

Safe Work NSW brought a prosecution against Ceerose Pty Ltd, a construction company, concerning the health and safety obligations under the work health and safety act. The dispute centred on the company's failure to ensure a safe working environment, resulting in a serious injury to a worker. The case was heard in the District Court of New South Wales. The primary legal issues revolved around the company's duty as an employer to prevent risks of death or serious injury to workers, and whether they had breached these obligations.

The court had to determine the appropriate penalty for the company, considering various factors such as the objective seriousness of the offence, the need for specific and general deterrence, and the principles of parity and totality. Additionally, the court examined mitigating and aggravating factors, the community values at the time, and the level of remorse and contrition shown by the company. The court also considered the impact of the injury on the worker, including the severity and ongoing nature of the victim's rehabilitation.

After thorough deliberation, the court found the company guilty of the charges. The judge imposed a fine of $300,000, with 50% of the fine payable to the prosecutor, in accordance with the Fines Act 1996. The court also ordered the company to pay the prosecution's costs as agreed or assessed. The judge emphasised the importance of maintaining high safety standards in the workplace to prevent such incidents in the future.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a fine of $300,000.

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 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

Full text does not contain this section.

Medium Neutral Citation:	Safe Work NSW v Ceerose Pty Ltd [2017] NSWDC 313
Hearing dates:	25 October 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 I impose a fine of $300,000. 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 or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCE – mitigating factors – aggravating factors – fine – 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 OTHER – injuries to victim – pelvic injuries – thoracic vertebrae injury – rehabilitation of victim – ongoing difficulties
Legislation Cited:	Work Health and Safety Act 2011 s.19(2), 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(d), 21A(2)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 ss. 6, 122(2)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v McNaughton (2006) 66 NSWLR 566 R v Youkhana [2004] NSWCCA 412 R v Tuala [2015] NSWCCA 8 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Safe Work NSW (Prosecutor) Ceerose Pty Ltd (Offender)
Representation:	Counsel: Ms P McEinery (Prosecutor) Mrs W Thompson (Offender) Solicitors: Safe Work NSW (Prosecutor) DLA Piper Australia (Offender)
File Number(s):	2016/00189601
Publication restriction:	None