SafeWork NSW v Camden Council - [2021] NSWDC 709

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Camden Council [2021] NSWDC 709
Hearing dates: 6 December 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine is $1,000,000.00 and that will be reduced by 25% to reflect the early plea.
(3)   Accordingly, I order the defendant pay a fine of $750,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs as agreed or assessed.

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 sentence
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)
Local Government Act 1993
Work Health and Safety Act2011 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
LawrensonDiecasting 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
R v Cage [2006] NSWCCA 304
R v Commercial and Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Camden Council (Defendant)
Representation:
Ms P McEniery of counsel (for the Prosecutor)
Mr R Coffey of counsel (for the Defendant)
Solicitors: Mr J O’Connell, Department of Customer Service (for the Prosecutor)
Ms Carlie Holt, Sparke Helmore Lawyers (for the Defendant)

File Number(s): 2020/00189661

JUDGMENT

On 13 September 2021, Camden Council (‘the defendant’) entered a plea of guilty in respect of an offence under s 32 of the Work Health and Safety Act2011 (NSW) (‘the Act’) that…

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: [2021] NSWDC 709
Decision Date: 21 December 2021

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Camden Council, asserting that the council had failed to comply with its duty under the Work Health and Safety Act 2011 (NSW) to ensure that its activities did not pose a risk of death or serious injury. The case was heard in a court of law where the council pleaded guilty to a charge under section 19(1) of the Act. The court had to determine the appropriate sentence, taking into account the objective seriousness of the offence, mitigating factors, aggravating factors, the council's early guilty plea, the need for general and specific deterrence, and the council's capacity to pay. The court considered the breach to be of high objective seriousness, given the potential for serious injury or death. However, it also recognised the council's early guilty plea and other mitigating factors. After weighing these considerations, the court imposed a substantial fine, reduced by 25% due to the plea, and ordered that half of the fine be paid to the prosecutor. Additionally, the court ordered the council to pay the prosecutor's costs.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine is $1,000,000.00 and that will be reduced by 25% to reflect the early plea.

(3) Accordingly, I order the defendant pay a fine of $750,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs as agreed or assessed.

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 Camden Council [2021] NSWDC 709
Hearing dates:	6 December 2021
Date of orders:	21 December 2021
Decision date:	21 December 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine is $1,000,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $750,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs as agreed or assessed.
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 sentence 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) Local Government Act 1993 Work Health and Safety Act2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 LawrensonDiecasting 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 R v Cage [2006] NSWCCA 304 R v Commercial and Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Camden Council (Defendant)
Representation:	Ms P McEniery of counsel (for the Prosecutor) Mr R Coffey of counsel (for the Defendant) Solicitors: Mr J O’Connell, Department of Customer Service (for the Prosecutor) Ms Carlie Holt, Sparke Helmore Lawyers (for the Defendant)
File Number(s):	2020/00189661