SafeWork NSW v Akkari Group Pty Ltd

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: SafeWork NSW v Akkari Group Pty Ltd [2022] NSWDC 197
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 for the s 38 offence (Matter No. 2021/117708) is $50,000, and that will be reduced by 25% for the utilitarian value of the plea.

(3)           The defendant is therefore fined $37,500.

(4) The appropriate fine for the s 19(1) offence (Matter No. 2021/117757) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea.

(5)           The defendant is therefore fined $281,250.

(6) The appropriate fine for the s 26(2) offence (Matter No. 2021/117812) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea.

(7)           The defendant is therefore fined $281,250.

(8) 50% of the fines imposed are to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW).

(9) 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

Director of Public Prosecutions v Dalgleish [2017] HCA 41

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Hay v The Queen [2009] NSWCCA 228

Johnson v The Queen [2004] HCA 15

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

Postiglione v The Queen [1997] HCA 26

Postiglione v The Queen (1997) 189 CLR 295

R v Cage [2006] NSWCCA 304

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

R v Youkhana [2004] NSWCCA 412

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…

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Details
Case
[2022] NSWDC 197
Decision Date

CaseChat Overview and Summary

In SafeWork NSW v Akkari Group Pty Ltd, SafeWork NSW brought proceedings against Akkari Group Pty Ltd for breaches of the Work Health and Safety Act 2011 (NSW). The case involved allegations of the company failing to ensure the health and safety of workers, thereby contravening specific sections of the Act. The Local Court was tasked with determining the company's culpability and assessing an appropriate penalty. The court had to decide on several legal issues, including the company's duty under the Act, the objective seriousness of the offences, and the appropriate fines to be imposed under the Fines Act 1996 (NSW). Additionally, the court needed to consider mitigating and aggravating factors, as well as the utilitarian value of the defendant's plea of guilty.

The court examined the evidence presented and concluded that Akkari Group Pty Ltd had indeed failed in its duty to ensure the safety of workers, thus breaching sections 19(1), 26(2), and 38 of the Work Health and Safety Act 2011 (NSW). The seriousness of these breaches was assessed by considering the potential for death or serious injury, the extent of the company's culpability, and the need for general and specific deterrence. Given the company's plea of guilty and the absence of previous convictions, the court applied a 25% reduction in fines. The court found the company to be in a position to pay substantial fines and ordered that 50% of the fines be paid to the prosecutor, with the remaining 50% to be paid by the company. Additionally, the company was directed to pay the prosecutor's costs as agreed or assessed.

Following its analysis, the court found Akkari Group Pty Ltd guilty on all counts. It imposed fines of $37,500 for the s 38 offence, $281,250 for the s 19(1) offence, and $281,250 for the s 26(2) offence, with each fine reduced by 25% due to the plea of guilty. The court also ordered that 50% of the fines be paid to the prosecutor, and that the company pay the prosecutor's costs as agreed or assessed. These orders reflect the court's determination to enforce the health and safety obligations under the Act and to ensure appropriate penalties for serious breaches.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the s 38 offence (Matter No. 2021/117708) is $50,000, and that will be reduced by 25% for the utilitarian value of the plea.

(3) The defendant is therefore fined $37,500.

(4) The appropriate fine for the s 19(1) offence (Matter No. 2021/117757) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea.

(5) The defendant is therefore fined $281,250.

(6) The appropriate fine for the s 26(2) offence (Matter No. 2021/117812) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea.

(7) The defendant is therefore fined $281,250.

(8) 50% of the fines imposed are to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW).

(9) 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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