SafeWork NSW v Bennett (No.2)

Case [2022] NSWDC 453


District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Bennett (No.2) [2022] NSWDC 453
Hearing dates: 4 October 2022
Date of orders: 7 October 2022
Decision date: 07 October 2022
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

In District Court proceedings 2020/303207 (s 19(1) Summons):

(1)   Mr Nigel Bennett was convicted on 12 August 2022.

(2)   Order Mr Nigel Bennett to pay a fine of $2,500.

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

(4)   Order Mr Nigel Bennett to pay the prosecutor’s costs.

In District Court proceedings 2020/303225 (s 19(2) Summons):

(1)   Mr Nigel Bennett was convicted on 12 August 2022.

(2)   Order Mr Nigel Bennett to pay a fine of $12,500.

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

(4)   Order Mr Nigel Bennett 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 – parity – totality

COSTS – prosecution costs

OTHER – defendant engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A,

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

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

Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

EPA v Barnes [2006] NSWCCA 246

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA…

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AGLC
SafeWork NSW v Bennett (No.2) [2022] NSWDC 453
Case
[2022] NSWDC 453
Decision Date

CaseChat Overview and Summary

The appellant, Mr Nigel Bennett, was prosecuted by SafeWork NSW for offences under the Work Health and Safety Act 2011 (NSW). The prosecution arose from an incident where Mr Bennett, engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck, caused the boom of the crane to come into contact with, or in close proximity to, live overhead power lines, resulting in two persons suffering electric shocks. Mr Bennett was charged with breaches of the duty of persons undertaking a business or undertaking, specifically for failing to ensure the safety of workers and others. The case was heard in the District Court of New South Wales.

The court was tasked with determining the appropriate penalties and costs for Mr Bennett’s breaches of the statutory duty. Key issues included the objective seriousness of the offences, the mitigating and aggravating factors, the plea of guilty, and the capacity of Mr Bennett to pay the fines. The court also had to consider the principles of general and specific deterrence and ensure parity with similar cases. The prosecution sought substantial fines and costs, arguing for the severity of the incident and the need to uphold workplace safety standards.

The court found Mr Bennett guilty on both charges, emphasizing the gravity of the incident and the multiple breaches of safety protocols. It considered the severity of the harm caused, the culpability of Mr Bennett, and the need for deterrence. The court noted the plea of guilty as a mitigating factor but found the breaches to be egregious, warranting significant penalties. The court ordered Mr Bennett to pay fines of $2,500 and $12,500 respectively, with 50% of each fine to be paid to the prosecutor. Additionally, Mr Bennett was ordered to pay the prosecution's costs.

The final orders of the court were that Mr Nigel Bennett pay a fine of $2,500 and $12,500 respectively, with 50% of each fine to be paid to the prosecutor. Furthermore, Mr Bennett was ordered to pay the prosecutor’s costs in both proceedings. These penalties and orders reflect the court's determination to uphold workplace safety and deter similar breaches in the future.

Orders

Orders of the court

In District Court proceedings 2020/303207 (s 19(1) Summons):

(1) Mr Nigel Bennett was convicted on 12 August 2022.

(2) Order Mr Nigel Bennett to pay a fine of $2,500.

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

(4) Order Mr Nigel Bennett to pay the prosecutor’s costs.

In District Court proceedings 2020/303225 (s 19(2) Summons):

(1) Mr Nigel Bennett was convicted on 12 August 2022.

(2) Order Mr Nigel Bennett to pay a fine of $12,500.

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

(4) Order Mr Nigel Bennett to pay the prosecutor’s costs.

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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