SafeWork NSW v Cincram Group Pty Ltd - [2022] NSWDC 613

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Cincram Group Pty Ltd [2022] NSWDC 613
Hearing dates: 2 December 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Cincram Group Pty Ltd is convicted.
(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Cincram Group Pty Ltd to pay a fine of $375,000.
(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 Cincram Group Pty Ltd to pay the prosecutor’s costs agreed in the amount of $47,500.

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 – worker unpacking stacks of pallets from an elevated shipping container – pallet jack used to move pallets within container – pallet shifted and pinned worker against forklift – worker fell from elevated position onto the ground and struck his head

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

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
SafeWork NSW v Meixing Jiang [2018] NSWDC 400
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
SafeWork NSW Code of Practice Managing the Risk of Falls dated August 2019
SafeWork NSW Guide for Unpacking Shipping Containers dated October 2016
SafeWork NSW Video Safety Alert Unpacking Shipping Containers dated 26 April 2018

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Cincram Group Pty Ltd (Defendant)
Representation:
Counsel:
N Read (Prosecutor)
P Barry (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Kingston Reid (Defendant)

File Number(s): 2021/323845

Judgment

On 20 November 2019 Mr Chan Hu, employed by Cincram Group Pty Ltd (Cincram), was unpacking pallets of copper cable from an elevated shipping container. While he was handling a pallet jack laden with a stack of two pallets within 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: [2022] NSWDC 613
Decision Date: 09 December 2022

CaseChat Overview and Summary

SafeWork NSW initiated proceedings against Cincram Group Pty Ltd in the Local Court of New South Wales, following a workplace incident where a worker was seriously injured. The worker was unpacking stacks of pallets from an elevated shipping container when a pallet jack was used to move pallets within the container. Unfortunately, a pallet shifted, pinning the worker against a forklift. The worker fell from the elevated position onto the ground, striking his head in the process. The incident raised concerns about the company's adherence to work health and safety regulations and its duty to prevent risks of death or serious injury. The court was tasked with determining whether Cincram Group Pty Ltd had breached its statutory obligations and, if so, to what extent it should be held liable.

The primary legal issues before the court were whether Cincram Group Pty Ltd had violated its duty under the work health and safety legislation and what the appropriate penalty should be given the circumstances of the case. The court considered the objective seriousness of the incident, the company’s plea of guilty, and various mitigating and aggravating factors. It also weighed the need for general and specific deterrence, as well as the company's capacity to pay a fine. The court needed to balance these considerations to arrive at a just outcome that also served the broader interests of public safety and compliance with occupational health and safety laws.

In its decision, the court found Cincram Group Pty Ltd guilty of breaching its statutory duty. It determined that while the incident warranted a significant penalty, the company's early guilty plea warranted a reduction in the fine. The court imposed a fine of $500,000, reduced by 25% due to the plea, resulting in a final fine of $375,000. Additionally, half of the fine was ordered to be paid to the prosecutor, and the company was required to cover the prosecutor's costs, amounting to $47,500. The court's decision highlighted the importance of stringent workplace safety measures and the severe consequences that can follow from their neglect.

Orders

Orders of the court

(1) Cincram Group Pty Ltd is convicted.

(2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Cincram Group Pty Ltd to pay a fine of $375,000.

(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 Cincram Group Pty Ltd to pay the prosecutor’s costs agreed in the amount of $47,500.

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 Cincram Group Pty Ltd [2022] NSWDC 613
Hearing dates:	2 December 2022
Date of orders:	9 December 2022
Decision date:	09 December 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Cincram Group Pty Ltd is convicted. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Cincram Group Pty Ltd to pay a fine of $375,000. (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 Cincram Group Pty Ltd to pay the prosecutor’s costs agreed in the amount of $47,500.
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 – worker unpacking stacks of pallets from an elevated shipping container – pallet jack used to move pallets within container – pallet shifted and pinned worker against forklift – worker fell from elevated position onto the ground and struck his head
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
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 SafeWork NSW v Meixing Jiang [2018] NSWDC 400 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	SafeWork NSW Code of Practice Managing the Risk of Falls dated August 2019 SafeWork NSW Guide for Unpacking Shipping Containers dated October 2016 SafeWork NSW Video Safety Alert Unpacking Shipping Containers dated 26 April 2018
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Cincram Group Pty Ltd (Defendant)
Representation:	Counsel: N Read (Prosecutor) P Barry (Defendant) Solicitors: Department of Customer Service (Prosecutor) Kingston Reid (Defendant)
File Number(s):	2021/323845