SafeWork NSW v Bay Trusses and Frames Pty Ltd - [2020] NSWDC 317

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Bay Trusses & Frames Pty Ltd [2020] NSWDC 317
Hearing dates: 12 May 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1) The defendant is convicted.

(2) The appropriate fine for the defendant would be $400,000.00 and that will be reduced by 25% to reflect a plea of guilty.

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

(4) 50% of the fine imposed is to be paid to the prosecutor.
(5) The defendant is to pay the prosecutor’s costs as agreed in the sum of $27,500.00.
Catchwords: CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury
SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition
COSTS – prosecution costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)
Workplace Health and Safety Regulations 2011 (NSW)
Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v Miria [2009] NSWCCA 68
Texts Cited: Australian Standard 2359: Powered Industrial Trucks (2013)
Safe Operating Procedure ‘Loading & Unloading’ (November 2012)
SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’
SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011)
SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014)
WorkCover Safety Alert ‘Working with or around Mobile Plant’
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Bay Trusses & Frames Pty Ltd (Defendant)
Representation:
Counsel:
Ms J Single SC appeared for the Prosecutor
Mrs W Thompson appeared for the Defendant
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Aaron Dearden, Hall & Wilcox (Defendant)

File Number(s): 2019/00205590
Publication restriction: None

Judgment

On 16 December 2019, Bay Trusses & Frames Pty Ltd (‘the defendant’) pleaded guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) by failing to comply with the health and safety duty imposed upon it by section 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.
This offence carries the maximum penalty of $1,500,000.00.
The contravention arises from an…

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.

Continue reading SafeWork NSW v Bay Trusses and Frames Pty Ltd

Details

AGLC: SafeWork NSW v Bay Trusses and Frames Pty Ltd [2020] NSWDC 317
Case: [2020] NSWDC 317
Decision Date: 19 June 2020

CaseChat Overview and Summary

SafeWork NSW initiated legal proceedings against Bay Trusses and Frames Pty Ltd, addressing violations of work health and safety laws, which led to a risk of severe injury or death. The case was adjudicated in a court of law, where the defendant pleaded guilty to the charges. The court was tasked with determining the appropriate penalty for the defendant's breach of duty under work health and safety regulations, considering both the gravity of the offence and the mitigating and aggravating factors presented.

The primary legal issue before the court was to assess the objective seriousness of the offence, taking into account the mitigating factors, such as the defendant's plea of guilty, and the aggravating factors, which included the potential harm to workers. The court also had to determine the appropriate penalty, including the discount for the guilty plea, and the necessity for both general and specific deterrence. Furthermore, the court needed to consider the defendant's level of remorse and contrition, and finally, to decide on the financial penalty and associated costs.

The court found the defendant guilty and imposed a fine of $400,000, which was subsequently reduced by 25% due to the defendant's early guilty plea. The fine was further adjusted to $300,000, with half of this amount to be paid to the prosecutor. The court also ordered the defendant to cover the agreed costs of $27,500 incurred by the prosecution. This decision underscores the importance of compliance with work health and safety regulations and the court's approach to penalties in such cases.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the defendant would be $400,000.00 and that will be reduced by 25% to reflect a plea of guilty.

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

(4) 50% of the fine imposed is to be paid to the prosecutor.

(5) The defendant is to pay the prosecutor’s costs as agreed in the sum of $27,500.00.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Bay Trusses & Frames Pty Ltd [2020] NSWDC 317
Hearing dates:	12 May 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the defendant would be $400,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $300,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant is to pay the prosecutor’s costs as agreed in the sum of $27,500.00.
Catchwords:	CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition COSTS – prosecution costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Workplace Health and Safety Regulations 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v Miria [2009] NSWCCA 68
Texts Cited:	Australian Standard 2359: Powered Industrial Trucks (2013) Safe Operating Procedure ‘Loading & Unloading’ (November 2012) SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’ SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011) SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014) WorkCover Safety Alert ‘Working with or around Mobile Plant’
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Bay Trusses & Frames Pty Ltd (Defendant)
Representation:	Counsel: Ms J Single SC appeared for the Prosecutor Mrs W Thompson appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Aaron Dearden, Hall & Wilcox (Defendant)
File Number(s):	2019/00205590
Publication restriction:	None