Safe Work (NSW) v JSN Hanna Pty Ltd - [2016] NSWDC 117

District Court

New South Wales

Medium Neutral Citation: Safe Work (NSW) v JSN Hanna Pty Ltd [2016] NSWDC 117
Hearing dates: 1 July 2016
Date of orders: 04 July 2016
Decision date: 04 July 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted.
2 I impose a fine of $87,500.
3 I order 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 prosecutor’s costs as agreed of $70,000

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – principal contractor
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
COSTS – prosecution costs - agreed costs
Legislation Cited: Work Health and Safety Act 2011 ss. 19(1), 32
Crimes (Sentence Procedure) Act 1999 ss. 3A, 21A(2)(l), 21A(3)(2), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m)
Fines Act 1996 s.122(2)
Work Health and Safety Regulations 2011 cl. 299
Cases Cited: Veen v R (No 2) (1988) 164 CLR 465
R v McNaughton (2006) 66 NSWLR 566
Baumer v R (1988) 166 CLR 51
BW v R [2011] NSWCCA 176
R v Wilkinson (No 5) [2009] NSWSC 432
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Environmental Protection Agency v Barnes [2006] NSWCCA 246
Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Category: Sentence
Parties: Safe Work (NSW) (Prosecutor)
JSN Hanna Pty Ltd (Offender)
Representation:
Counsel:
Mr I Taylor SC with Ms E James (Prosecutor)
Mr M Shume (Offender)
Solicitors:
Safe Work (NSW) (Prosecutor)
Colin Biggers & Paisley Lawyers (Offender)

File Number(s): 2014/00176176

sentence

JSN Hanna Pty Limited (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Taiene Silva 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 business providing building services. On 7 December 2012 the offender was the principal contractor for the development of a block of residential units in Lane Cove (the site).
The offender sub-contracted the supply and installation of Architectural Framing System (AFS) panels at the site to Ultrafloor Australia Pty Ltd (Ultrafloor). Ultrafloor then engaged Davidson Group Installations Pty Ltd (DGI) to install the AFS walls. DGI engaged Ultra Wall Pty…

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: [2016] NSWDC 117
Decision Date: 04 July 2016

CaseChat Overview and Summary

In the case of Safe Work (NSW) v JSN Hanna Pty Ltd, the matter was before the court to determine the company's liability and appropriate penalty for breaches of work health and safety laws. The dispute involved the company's obligations as a principal contractor under the relevant legislation, specifically in relation to the duty to prevent risks of death or serious injury to workers. Safe Work NSW prosecuted JSN Hanna Pty Ltd for these breaches, leading to the case being heard and decided.

The primary legal issues for the court to address were the nature and extent of JSN Hanna Pty Ltd's duties under the work health and safety legislation, and whether these duties were breached. Additionally, the court had to determine the appropriate penalty for the company, taking into account various sentencing principles such as the objective seriousness of the offence, the capacity of the company to pay, and the principles of deterrence and proportionality.

The court found that JSN Hanna Pty Ltd had indeed breached its duties under the relevant legislation. In determining the penalty, the court considered a range of mitigating and aggravating factors. The company had shown some level of remorse and contrition, but the breaches had led to significant risks of serious injury to workers. The court emphasised the need for both specific and general deterrence in its reasoning, ultimately deciding on a fine of $87,500, with half to be paid to the prosecutor and the remainder to be borne by the company. The court also ordered the company to pay the agreed costs of $70,000 to the prosecutor.

The final orders of the court were that JSN Hanna Pty Ltd was convicted of the charges brought by Safe Work NSW. The company was fined $87,500, with half of that amount to be paid to the prosecutor, and the remaining half to be paid by the company itself. Additionally, the company was ordered to pay the agreed costs of $70,000 to the prosecutor. This decision reflects the court's commitment to upholding work health and safety standards and ensuring that breaches are met with appropriate penalties.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a fine of $87,500.

3 I order 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 prosecutor’s costs as agreed of $70,000

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 JSN Hanna Pty Ltd [2016] NSWDC 117
Hearing dates:	1 July 2016
Date of orders:	04 July 2016
Decision date:	04 July 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 I impose a fine of $87,500. 3 I order 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 prosecutor’s costs as agreed of $70,000
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – principal contractor 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 COSTS – prosecution costs - agreed costs
Legislation Cited:	Work Health and Safety Act 2011 ss. 19(1), 32 Crimes (Sentence Procedure) Act 1999 ss. 3A, 21A(2)(l), 21A(3)(2), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 s.122(2) Work Health and Safety Regulations 2011 cl. 299
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Environmental Protection Agency v Barnes [2006] NSWCCA 246 Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Category:	Sentence
Parties:	Safe Work (NSW) (Prosecutor) JSN Hanna Pty Ltd (Offender)
Representation:	Counsel: Mr I Taylor SC with Ms E James (Prosecutor) Mr M Shume (Offender) Solicitors: Safe Work (NSW) (Prosecutor) Colin Biggers & Paisley Lawyers (Offender)
File Number(s):	2014/00176176