SafeWork NSW v Aptec Constructions Pty Limited - [2019] NSWDC 229

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Aptec Constructions Pty Limited [2019] NSWDC 229
Hearing dates: 17 May 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The offender is convicted.
(2)   The appropriate fine is $240,000 but that will be reduced to $160,000 by reason of capacity to pay and further by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $120,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender to pay the prosecutor’s costs agreed in the amount of $21,500.

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 – appropriate penalty

COSTS - prosecution costs
OTHER – fall from height – no edge protection or fall prevention device
Legislation Cited: Corporations Act 2001 (C’th)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Baumer v R (1998) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
DPP v Gregory [2011] VSCA 145
Green v R [2011] HCA 49
Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
Jahandideh v R [2014] NSWCCA 178
Jimmy v R (2010) 77 NSWLR 540
Markarian v R (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v McNaughton (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Safework NSW v Ru Dong Li [2018] NSWDC 189
Sandell v Porter [1966] HCA 28; (1996) 115 CLR 666
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v R (No. 2) (1998) 164 CLR 465
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Aptec Constructions Pty Limited (Defendant)
Representation:
Counsel:
D Nagle (Prosecutor)
T Epstein (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Clyde & Co (Defendant)

File Number(s): 2017/350287

Judgment

Aptec Constructions Pty Limited (Aptec) (the offender) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr David Liston-Smith to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for…

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.

Keep reading for free

Create a free CaseChat account to read SafeWork NSW v Aptec Constructions Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWDC 229
Decision Date: 07 June 2019

CaseChat Overview and Summary

SafeWork NSW prosecuted Aptec Constructions Pty Limited for violations of work health and safety laws following an incident where a worker fell from a height of over two metres on a construction site. The dispute centred on the duty of the company to provide a safe working environment and whether it failed to do so by not installing edge protection or a fall prevention device. The matter was heard in the Local Court of New South Wales.

The court had to determine whether Aptec Constructions Pty Limited breached its duty under work health and safety legislation by not implementing adequate fall prevention measures, which directly led to the worker's injury. The legal issues included the assessment of the objective seriousness of the offence, the consideration of mitigating and aggravating factors, and the appropriateness of the penalty given the company's plea of guilty. The court also needed to decide on the allocation of prosecution costs.

The court found that Aptec Constructions Pty Limited had indeed breached its duty, leading to the worker's injury. It considered the objective seriousness of the offence, noting the potential for death or serious injury, and the mitigating factors, such as the company's plea of guilty and its capacity to pay. The court reduced the proposed fine from $240,000 to $120,000, taking into account the plea of guilty and the company's financial situation. Additionally, the court ordered that 50% of the fine be paid to the prosecutor and that the company pay the agreed prosecution costs of $21,500. The decision emphasised the importance of compliance with work health and safety laws and the need for appropriate penalties to ensure deterrence.

Orders

Orders of the court

(1) The offender is convicted.

(2) The appropriate fine is $240,000 but that will be reduced to $160,000 by reason of capacity to pay and further by 25% to reflect the plea of guilty.

(3) Order the offender to pay a fine of $120,000.

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

(5) Order the offender to pay the prosecutor’s costs agreed in the amount of $21,500.

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 Aptec Constructions Pty Limited [2019] NSWDC 229
Hearing dates:	17 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The offender is convicted. (2) The appropriate fine is $240,000 but that will be reduced to $160,000 by reason of capacity to pay and further by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $120,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor’s costs agreed in the amount of $21,500.
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 – appropriate penalty COSTS - prosecution costs OTHER – fall from height – no edge protection or fall prevention device
Legislation Cited:	Corporations Act 2001 (C’th) Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 Baumer v R (1998) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145 Green v R [2011] HCA 49 Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125 Jahandideh v R [2014] NSWCCA 178 Jimmy v R (2010) 77 NSWLR 540 Markarian v R (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Safework NSW v Ru Dong Li [2018] NSWDC 189 Sandell v Porter [1966] HCA 28; (1996) 115 CLR 666 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v R (No. 2) (1998) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Aptec Constructions Pty Limited (Defendant)
Representation:	Counsel: D Nagle (Prosecutor) T Epstein (Defendant) Solicitors: SafeWork NSW (Prosecutor) Clyde & Co (Defendant)
File Number(s):	2017/350287