SafeWork NSW v Akkari Group Pty Ltd - [2022] NSWDC 196

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Akkari Group Pty Ltd [2022] NSWDC 196
Hearing dates: 22 April 2022
Date of orders: 7 June 2022
Decision date: 07 June 2022
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea.
(3)   I order the defendant to pay a fine in the sum of $300,000.00.
(4) 50% of the fine imposed is to be paid to the prosecutor, pursuant to s 133(2) of the Fines Act 1996 (NSW).
(5) The defendant is to pay the prosecutor’s costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – previous convictions - appropriate sentence – Fines Act 1996 (NSW)
OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:
SafeWork NSW’s Code of Practice for Excavation Work, July 2005

Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Akkari Group Pty Ltd (Defendant)
Representation:
Counsel:
Mr N Read (for the Prosecutor)
Mr M Shume (for the Defendant)
Solicitors:
Department of Customer Service, (Prosecutor)
Macquarie Law Group (Defendant)

File Number(s): 2020/129277
Publication restriction: None

judgment

BACKGROUND

Akkari Group Pty Ltd (‘the defendant’) has pleaded guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’). By virtue of the plea, the defendant has admitted that…

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: [2022] NSWDC 196
Decision Date: 07 June 2022

CaseChat Overview and Summary

In the matter of SafeWork NSW v Akkari Group Pty Ltd, the dispute centred on a prosecution brought by SafeWork NSW against Akkari Group Pty Ltd for alleged breaches of work health and safety regulations. The case was heard in the Local Court of New South Wales. The primary issue for determination was the extent of the company's liability under section 19(1) of the Work Health and Safety Act 2011 (NSW) and the appropriate penalty for the contraventions. The court also considered various sentencing factors, including the objective seriousness of the offence, the presence of mitigating and aggravating circumstances, the defendant's plea of guilty, and the need for general and specific deterrence.

The court examined the nature and extent of the risk posed by the alleged breaches, which had the potential to cause death or serious injury. It assessed the mitigating factors presented, such as the company's efforts to rectify the issues post-notification and its otherwise good safety record, alongside the aggravating factors, which included the significant nature of the violations and the potential harm that could have resulted. The plea of guilty was noted as a mitigating factor, but the court emphasised the importance of deterrence in cases involving work health and safety. The court also considered the company's previous convictions and history in similar matters.

After weighing all these factors, the court determined that the appropriate penalty was a fine of $400,000, reduced by 25% due to the plea of guilty. The court ordered the company to pay $300,000, with half of this amount to be paid to the prosecutor as per the Fines Act 1996 (NSW). Additionally, the company was directed to pay the prosecutor's costs as agreed or assessed under the Criminal Procedure Act 1986 (NSW). This decision underscores the court's commitment to enforcing work health and safety laws rigorously, particularly when the potential for serious harm is involved.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea.

(3) I order the defendant to pay a fine in the sum of $300,000.00.

(4) 50% of the fine imposed is to be paid to the prosecutor, pursuant to s 133(2) of the Fines Act 1996 (NSW).

(5) The defendant is to pay the prosecutor’s costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

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:	SafeWork NSW v Akkari Group Pty Ltd [2022] NSWDC 196
Hearing dates:	22 April 2022
Date of orders:	7 June 2022
Decision date:	07 June 2022
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea. (3) I order the defendant to pay a fine in the sum of $300,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor, pursuant to s 133(2) of the Fines Act 1996 (NSW). (5) The defendant is to pay the prosecutor’s costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – previous convictions - appropriate sentence – Fines Act 1996 (NSW) OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited:	SafeWork NSW’s Code of Practice for Excavation Work, July 2005
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Akkari Group Pty Ltd (Defendant)
Representation:	Counsel: Mr N Read (for the Prosecutor) Mr M Shume (for the Defendant) Solicitors: Department of Customer Service, (Prosecutor) Macquarie Law Group (Defendant)
File Number(s):	2020/129277
Publication restriction:	None