Safe Work (NSW) v Schaefer Systems International P/L - [2016] NSWDC 321

District Court

New South Wales

Medium Neutral Citation: Safe Work (NSW) v Schaefer Systems International P/L [2016] NSWDC 321
Hearing dates: 10 November 2016
Date of orders: 28 November 2016
Decision date: 28 November 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1. The offender is convicted.
2. The appropriate fine is one of $150,000 that will be discounted by 20% to take into account the plea of guilty.
3. I impose a fine of $120,000.
4. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. 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 – safe work method statement – foreseeability of risk – supervision of work by offender – engagement of sub- contractor for installation – installation shelving system – overall responsibility – risk and hazards – victim unsupervised by offender at time of incident – safety measures available at the time of the incident
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 – penalty – extra curial punishment
COSTS – prosecution costs
Legislation Cited: Work Health and Safety Act 2011 ss.19(1), 32
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(3)(e), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
Fines Act 1996 ss. 6, 122(2)
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence
Parties: Safe Work (NSW) (Prosecutor)
Schaefer Systems International P/L (Offender)
Representation:
Counsel:
Mr Magee (Prosecutor)
Mrs Thompson (Offender)
Solicitors:
Safe Work (NSW) (Prosecutor)
HWL Ebsworth (Offender)

File Number(s): 2014/00338643

sentence

Schaefer Systems International 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(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Kyell Lewis 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 which can be summarised as follows.
The offender conducted a business providing industrial storage systems, including providing design, project management and customer support services regarding the implementation of these systems. The offender did not install the storage systems but would engage specialist contractors to undertake this work. The offender would assist installation contractors on technical issues and monitor the progress, quality and safety of installation work.
On or about 18 April 2013, Fashion Biz (Aust) Pty Ltd (Fashion Biz) and the offender entered…

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 321
Decision Date: 28 November 2016

CaseChat Overview and Summary

In the matter of Safe Work (NSW) v Schaefer Systems International P/L, the Industrial Court of New South Wales was tasked with addressing the prosecution of Schaefer Systems International P/L for breaches in work health and safety regulations. The dispute arose from the installation of a shelving system at a workplace, which resulted in the death of an employee due to the collapse of the structure. The central issues included whether Schaefer Systems International P/L breached its duty under the Work Health and Safety Act by failing to implement adequate safety measures, and whether the company could be held liable for the actions of a sub-contractor.

The court had to determine if the company could be held responsible for the risk of death or serious injury despite the victim being unsupervised by the offender at the time of the incident. It also had to consider whether the company's failure to provide a safe work method statement and oversight of the installation process constituted a breach of duty. Additionally, the court examined the foreseeability of the risk and whether Schaefer Systems International P/L had an overall responsibility to ensure the safety of the installation.

In its reasoning, the court found that Schaefer Systems International P/L was indeed liable for the breaches in safety regulations, noting that the company had a duty to ensure that the work was carried out safely, including the engagement of competent sub-contractors and the provision of necessary safety measures. The court considered various mitigating and aggravating factors, including the company's capacity to pay, the objective seriousness of the offence, and the need for both specific and general deterrence. Ultimately, the court imposed a fine of $120,000, discounted for the plea of guilty, and ordered that half of the fine be paid to the prosecutor. Furthermore, the court mandated that Schaefer Systems International P/L pay the agreed or assessed costs of the prosecution.

Orders

Orders of the court

1. The offender is convicted.

2. The appropriate fine is one of $150,000 that will be discounted by 20% to take into account the plea of guilty.

3. I impose a fine of $120,000.

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

5. 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 Schaefer Systems International P/L [2016] NSWDC 321
Hearing dates:	10 November 2016
Date of orders:	28 November 2016
Decision date:	28 November 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. The offender is convicted. 2. The appropriate fine is one of $150,000 that will be discounted by 20% to take into account the plea of guilty. 3. I impose a fine of $120,000. 4. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. 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 – safe work method statement – foreseeability of risk – supervision of work by offender – engagement of sub- contractor for installation – installation shelving system – overall responsibility – risk and hazards – victim unsupervised by offender at time of incident – safety measures available at the time of the incident 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 – penalty – extra curial punishment COSTS – prosecution costs
Legislation Cited:	Work Health and Safety Act 2011 ss.19(1), 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(3)(e), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22 Fines Act 1996 ss. 6, 122(2)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Safe Work (NSW) (Prosecutor) Schaefer Systems International P/L (Offender)
Representation:	Counsel: Mr Magee (Prosecutor) Mrs Thompson (Offender) Solicitors: Safe Work (NSW) (Prosecutor) HWL Ebsworth (Offender)
File Number(s):	2014/00338643