Safe Work (NSW) v Karimbla Constructions Services (NSW) Pty Ltd - [2017] NSWDC 68

District Court

New South Wales

Medium Neutral Citation: Safe Work (NSW) v Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68
Hearing dates: 27 March 2017
Date of orders: 31 March 2017
Decision date: 31 March 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1. The offender is convicted
2. I impose a fine of $135,000.
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 $27,000.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee
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 – moiety
OTHER – Australian standard – fixed stairway – guardrail – handrail – identification of hazard
Legislation Cited: Work Health and Safety Act 2011 ss.19(1), 32
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
Fines Act 1996 s. 122(2)
Cases Cited: 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
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Category: Sentence
Parties: Safe Work (NSW) (Prosecutor)
Karimbla Constructions Services (NSW) Pty Ltd (Defendant)
Representation:
Counsel:
Mr I Taylor SC with Ms E James (Prosecutor)
Mr M Davis (Defendant)
Solicitors:
Safe Work (NSW) (Prosecutor)
Office of the General Counsel, Meriton Group (Defendant)

File Number(s): 2016/00044853

sentence

Karimbla Constructions Services (NSW) Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence contrary to section 32 Work Health and Safety Act 2011 (the Act). The offence was committed when the offender breached its health and safety duty owed pursuant to section 19(1) of the Act and thereby exposed Oteki Felemi to a risk of death or serious injury.
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 was the principal contractor for construction work at 19-33 Kent Road Mascot (the site). A multi-storey mixed use residential building was under construction.
Mr Felemi was employed by Freyssinet Australia Pty Ltd (Freyssinet) as a concrete stressor. Freyssinet had contracted with Karimbla to undertake post stressing at the site.
On 10 February 2015 Mr Felemi had finished work for the day on the sixth floor of the site. He was walking down an internal concrete stairway (the stairs) from the ground level to the underground car park levels to access a locker room that was being used by the…

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 68
Decision Date: 31 March 2017

CaseChat Overview and Summary

Safe Work (NSW) brought proceedings against Karimbla Constructions Services (NSW) Pty Ltd in the Local Court of New South Wales, seeking a conviction and penalty for an incident in which an employee of Karimbla Constructions Services suffered fatal injuries. The dispute centred on whether Karimbla Constructions Services had fulfilled its duty under work health and safety legislation to ensure a safe work environment, specifically regarding the adequacy of a stairway guardrail. The court had to determine the appropriate penalty for the breach, taking into account various sentencing principles and factors.

The primary legal issues before the court were whether Karimbla Constructions Services had contravened the relevant work health and safety legislation and, if so, what the appropriate penalty should be. The court had to consider the principles of sentencing, including the need for specific and general deterrence, the offender's capacity to pay, and the circumstances and objective seriousness of the offence. Additionally, the court assessed the offender's remorse and contrition, and the need to maintain parity with other penalties imposed for similar offences.

In determining the penalty, the court examined the circumstances of the offence, including the risk of death or serious injury, the offender's capacity to pay, and the objective seriousness of the breach. The court also considered mitigating factors such as the offender's remorse and contrition, as well as aggravating factors such as the failure to identify and address the hazard. The court concluded that a fine of $135,000 was appropriate, with 50% of the fine to be paid to the prosecutor and the remainder to be paid by the offender. The court also ordered the offender to pay the prosecutor's costs of $27,000.

The court's final orders were that Karimbla Constructions Services be convicted, a fine of $135,000 be imposed, 50% of which was to be paid to the prosecutor, and the offender pay the prosecutor's costs in the sum of $27,000. The court emphasised the importance of maintaining community safety and deterring future breaches of work health and safety legislation.

Orders

Orders of the court

1. The offender is convicted

2. I impose a fine of $135,000.

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 $27,000.

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 Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68
Hearing dates:	27 March 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. The offender is convicted 2. I impose a fine of $135,000. 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 $27,000.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee 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 – moiety OTHER – Australian standard – fixed stairway – guardrail – handrail – identification of hazard
Legislation Cited:	Work Health and Safety Act 2011 ss.19(1), 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22 Fines Act 1996 s. 122(2)
Cases Cited:	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 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Category:	Sentence
Parties:	Safe Work (NSW) (Prosecutor) Karimbla Constructions Services (NSW) Pty Ltd (Defendant)
Representation:	Counsel: Mr I Taylor SC with Ms E James (Prosecutor) Mr M Davis (Defendant) Solicitors: Safe Work (NSW) (Prosecutor) Office of the General Counsel, Meriton Group (Defendant)
File Number(s):	2016/00044853