SafeWork NSW v Avant Stone Pty Ltd - [2024] NSWDC 507

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Avant Stone Pty Ltd [2024] NSWDC 507
Hearing dates: 22 October 2024
Date of orders: 31 October 2024
Decision date: 31 October 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Avant Stone Pty Ltd is convicted.
(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Avant Stone Pty Ltd to pay a fine of $450,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order Avant Stone Pty Ltd to pay the prosecutor’s costs.

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 – capacity to pay appropriate penalty
COSTS – prosecution costs
OTHER – heavy stone slabs stored on A-frames – lack of safety bars to stop slabs tipping – no documented safety system – no supervision or spotting provided when workers were moving stone slabs using overhead crane – worker crushed by stone slabs

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2017 (NSW) cll, 54, 55, 203, 219

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
Australian Standard 2550.1-2011, Cranes, hoists and winches – Safe use Part 1: General requirements
SafeWork NSW Code of Practice, Managing the risks of plant in the workplace, August 2019
SafeWork NSW Incident Information Release, Worker crushed by stone slabs, 5 November 2021
SafeWork NSW Incident Information Release Worker crushed by stone slabs, 20 December 2021
Safe Work Australia Code of Practice, Hazardous Manual Tasks, October 2018
Safe Work Australia, Falling Objects Fact Sheet, February 2012

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Avant Stone Pty Ltd (Defendant)
Representation:
Counsel:
N Evans (Prosecutor)
R Coffey (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Moray & Agnew (Defendant)

File Number(s): 2024/29647

Judgment

The…

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: [2024] NSWDC 507
Decision Date: 31 October 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Avant Stone Pty Ltd for breaches of work health and safety laws, leading to a worker being crushed by stone slabs. The case was heard in the Local Court of New South Wales. The central issue was whether Avant Stone Pty Ltd had adequately discharged its duty under the relevant legislation to prevent the risk of death or serious injury to its workers. This included examining whether the company had a documented safety system in place, provided adequate supervision and spotting during the handling of heavy stone slabs, and implemented measures to prevent the slabs from tipping over.

The court found that Avant Stone Pty Ltd had failed to implement adequate safety measures. The slabs were stored on A-frames without safety bars, there was no documented safety system, and no supervision or spotting was provided when the slabs were being moved using an overhead crane. The worker was crushed when the slabs tipped over, resulting in severe injuries. The court considered various factors in determining the penalty, including the objective seriousness of the breach, the company's early guilty plea, and its capacity to pay. The court concluded that a substantial fine was necessary to achieve general and specific deterrence.

Avant Stone Pty Ltd was convicted, and a fine of $600,000 was imposed. The fine was reduced by 25% due to the early guilty plea, resulting in a total fine of $450,000. The court ordered that half of the fine be paid to SafeWork NSW and that Avant Stone Pty Ltd also pay the prosecution's costs. This decision underscores the importance of adhering to work health and safety regulations to prevent serious injuries in the workplace.

Orders

Orders of the court

(1) Avant Stone Pty Ltd is convicted.

(2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Avant Stone Pty Ltd to pay a fine of $450,000.

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

(5) Order Avant Stone Pty Ltd to pay the prosecutor’s costs.

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 Avant Stone Pty Ltd [2024] NSWDC 507
Hearing dates:	22 October 2024
Date of orders:	31 October 2024
Decision date:	31 October 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Avant Stone Pty Ltd is convicted. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Avant Stone Pty Ltd to pay a fine of $450,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Avant Stone Pty Ltd to pay the prosecutor’s costs.
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 – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – heavy stone slabs stored on A-frames – lack of safety bars to stop slabs tipping – no documented safety system – no supervision or spotting provided when workers were moving stone slabs using overhead crane – worker crushed by stone slabs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW) cll, 54, 55, 203, 219
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian Standard 2550.1-2011, Cranes, hoists and winches – Safe use Part 1: General requirements SafeWork NSW Code of Practice, Managing the risks of plant in the workplace, August 2019 SafeWork NSW Incident Information Release, Worker crushed by stone slabs, 5 November 2021 SafeWork NSW Incident Information Release Worker crushed by stone slabs, 20 December 2021 Safe Work Australia Code of Practice, Hazardous Manual Tasks, October 2018 Safe Work Australia, Falling Objects Fact Sheet, February 2012
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Avant Stone Pty Ltd (Defendant)
Representation:	Counsel: N Evans (Prosecutor) R Coffey (Defendant) Solicitors: Department of Customer Service (Prosecutor) Moray & Agnew (Defendant)
File Number(s):	2024/29647