Safe Work NSW v Universal Property Group Pty Ltd - [2018] NSWDC 19

District Court

New South Wales

Medium Neutral Citation: Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19
Hearing dates: 5 February 2018
Date of orders: 20 February 2018
Decision date: 20 February 2018
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 or assessed.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury
SENTENCE – mitigating factors – aggravating factors – penalty – circumstances – objective seriousness – specific deterrence – general deterrence
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition
COSTS – prosecution costs
Legislation Cited: Work Health and Safety Act 2011 ss.19, 32
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(i), 21A(3)(h), 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 Youkhana [2004] NSWCCA 412
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence
Parties: Safe Work NSW (Prosecutor)
Universal Property Group Pty Ltd (Offender)
Representation:
Counsel:
Mr M Scott (Prosecutor)
Mr C Magee (Offender)
Solicitors:
Safe Work NSW (Prosecutor)
Swaab Attorneys (Offender)

File Number(s): 2017/00029396
Publication restriction: None

sentence

Universal Property Group 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 Simon Yu 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 owned the property at 185 Knox Road, Doonside at which it was conducting a business or undertaking being the construction of a residential apartment complex.
The offender had an arrangement by which Raj and Jai Constructions Pty Ltd provided the services of its subcontractor, Emelieus Costa to provide supervision at the site. The offender employed a Construction Manager, who had responsibility for overall supervision at the site as well as a Cadets Engineer who had responsibility for site inductions and site safety.
The offender contracted with Fastform Australia Pty Ltd (Fastform) to undertake the concreting work. Fastform subcontracted the formwork to Easy Formwork and Construction Pty Ltd (Easy).
Easy’s work at the site involved laying a formwork deck that was to become the podium level on which the two-storey residential units would be built.
Elizabeth Anderson was employed by SDG Personnel Solutions Pty Ltd (SDP) as a surveyor. Mr…

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: [2018] NSWDC 19
Decision Date: 20 February 2018

CaseChat Overview and Summary

Safe Work NSW prosecuted Universal Property Group Pty Ltd for breaches of work health and safety regulations, following an incident that resulted in serious injuries to employees. The matter was heard in the Local Court of New South Wales. The primary legal issues revolved around the obligations of the employer under work health and safety laws, specifically whether the company had adequately discharged its duty to prevent risks of death or serious injury to its employees.

The court examined the employer's actions and found that it had failed to provide a safe working environment, thereby breaching statutory duties. The key issue was the assessment of appropriate penalties, taking into account both mitigating and aggravating factors. Mitigating factors included the company's previous good safety record and its cooperation during the investigation, while aggravating factors involved the severity of the incident and the failure to prevent it despite prior warnings.

In determining the penalty, the court considered the principles of sentencing relevant to work health and safety offences. It emphasised the need for objective seriousness, specific deterrence, and general deterrence. The court concluded that a substantial fine was necessary to reflect the gravity of the breach and to uphold community standards regarding workplace safety. The total fine imposed was $135,000, with half of this amount to be paid to the prosecutor, and the offender was also ordered to pay the prosecution's costs.

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 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 Universal Property Group Pty Ltd [2018] NSWDC 19
Hearing dates:	5 February 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
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 or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCE – mitigating factors – aggravating factors – penalty – circumstances – objective seriousness – specific deterrence – general deterrence SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition COSTS – prosecution costs
Legislation Cited:	Work Health and Safety Act 2011 ss.19, 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(i), 21A(3)(h), 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 Youkhana [2004] NSWCCA 412 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Safe Work NSW (Prosecutor) Universal Property Group Pty Ltd (Offender)
Representation:	Counsel: Mr M Scott (Prosecutor) Mr C Magee (Offender) Solicitors: Safe Work NSW (Prosecutor) Swaab Attorneys (Offender)
File Number(s):	2017/00029396
Publication restriction:	None