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 Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
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- Case
- [2022] NSWDC 197
- Decision Date
CaseChat Overview and Summary
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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