SafeWork NSW v Chris Darby Strata Pty Ltd - [2024] NSWDC 360

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360
Hearing dates: 7 August 2024
Date of orders: 22 August 2024
Decision date: 22 August 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Chris Darby Strata Pty Ltd was convicted on 7 August 2024.
(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Chris Darby Strata Pty Ltd to pay a fine of $150,000.
(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 Chris Darby Strata 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 – industrial strata complex – gate damaged by vehicle collision – strata managing agent notified – no urgent work order issued – worker subsequently fatally crushed by damaged gate – failure to arrange urgent repairs – failure to communicate with owners that gate should not be operated

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Strata Schemes Management Act 2015 (NSW), s 106
Work Health and Safety Act 2011 (NSW), ss 3, 20, 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
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
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
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
SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions…

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 360
Decision Date: 22 August 2024

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Chris Darby Strata Pty Ltd for breaches of work health and safety legislation in relation to a fatal incident at an industrial strata complex. A vehicle collision damaged a gate at the complex, and while the strata managing agent was notified, no urgent work order was issued. Subsequently, a worker was fatally crushed by the damaged gate, leading to allegations that the company failed to arrange urgent repairs and neglected to communicate with the owners that the gate should not be operated. The matter was heard in the Local Court of New South Wales.

The central legal issues for the court were whether Chris Darby Strata Pty Ltd had breached its duty of care under the work health and safety legislation and whether the prosecution had adequately demonstrated the objective seriousness of the breach. The court also had to determine the appropriate penalty, taking into account various sentencing factors such as the plea of guilty, mitigating and aggravating circumstances, and the need for general and specific deterrence. Additionally, the court had to decide on the allocation of costs, including the payment of prosecution costs.

The court found Chris Darby Strata Pty Ltd in breach of its duty of care, leading to the worker’s death. It acknowledged the early plea of guilty and reduced the fine by 25%, resulting in a final penalty of $150,000. The court ordered that half of this amount be paid to SafeWork NSW, as per the Fines Act 1996 (NSW). Furthermore, the court ruled that Chris Darby Strata Pty Ltd was liable for the prosecution’s costs.

The final orders of the court were that Chris Darby Strata Pty Ltd was convicted on 7 August 2024, and it was to pay a fine of $150,000. Additionally, it was ordered to pay half of this fine to the prosecutor and to cover the prosecution’s costs.

Orders

Orders of the court

(1) Chris Darby Strata Pty Ltd was convicted on 7 August 2024.

(2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Chris Darby Strata Pty Ltd to pay a fine of $150,000.

(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 Chris Darby Strata 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360
Hearing dates:	7 August 2024
Date of orders:	22 August 2024
Decision date:	22 August 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Chris Darby Strata Pty Ltd was convicted on 7 August 2024. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Chris Darby Strata Pty Ltd to pay a fine of $150,000. (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 Chris Darby Strata 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 – industrial strata complex – gate damaged by vehicle collision – strata managing agent notified – no urgent work order issued – worker subsequently fatally crushed by damaged gate – failure to arrange urgent repairs – failure to communicate with owners that gate should not be operated
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Strata Schemes Management Act 2015 (NSW), s 106 Work Health and Safety Act 2011 (NSW), ss 3, 20, 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 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 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions…