District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v CTN Construction Pty Limited [2017] NSWDC 340 Hearing dates: 27 November 2017 Date of orders: 29 November 2017 Decision date: 29 November 2017 Jurisdiction: Criminal Before: Judge D. Russell Decision: (1) The offender is convicted.
(2) Order the offender to pay a fine of $75,000
(3) Order that 50% of the fine is to be paid to the prosecutor.
(4) Order the offender to pay the prosecutor’s costs agreed in the sum of $20,000Catchwords: 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 – appropriate penalty
SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty
COSTS – prosecution costs
OTHER – fall from height – need for supervision by head contractor of subcontractors and trades to ensure safetyLegislation Cited: Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Regulation 2011Cases Cited: Veen v R (No. 2) (1998) 164 CLR 465
R v McNaughton (2006) 66 NSWLR 566
Baumer v R (1998) 166 CLR 51
BW v R [2011] NSWCCA 176
R v Wilkinson (No. 5) [2009] NSWSC 432
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Jahandideh v R [2014] NSWCCA 178Texts Cited: SafeWork Australia Managing the Risk of Falls at Workplaces Code of Practice (March 2015)
WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014)
SafeWork Australia National Code of Practice for the Prevention of Falls in Housing Construction April 2010Category: Sentence Parties: SafeWork NSW
CTN Construction Pty LimitedRepresentation: Counsel:
Solicitors:
M. Scott (prosecutor)
L. Katsinas (defendant)
SafeWork NSW (prosecutor)
David Chang Legal (defendant)
File Number(s): 2016/00319998
Judgment
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CTN Construction Pty Limited (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking that had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mr Jong Hyun Son (the victim) to a risk of death or serious injury contrary to s 32 of the Act.
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The maximum penalty for the offence is a fine of $1,500,000.
BACKGROUND
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The prosecutor tendered an Agreed Statement of Facts and an Agreed Sentence Tender Bundle which forms the basis of the background set out below.
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The offender was a registered corporation which conducted the business or undertaking of residential building and construction. It had been in business for…
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- Case
- [2017] NSWDC 340
- Decision Date
CaseChat Overview and Summary
The court considered the principles of sentencing in light of the totality of the circumstances, the objective seriousness of the offence, and the presence of mitigating and aggravating factors. CTN Construction pleaded guilty, which was a mitigating factor. However, the court also considered the need for general and specific deterrence, as well as the need for the company to take responsibility for ensuring the safety of its workers. The court found that CTN Construction had not adequately supervised its subcontractors and trades, leading to the incident.
After weighing all factors, the court convicted CTN Construction and ordered a fine of $75,000, with half to be paid to the prosecutor. Additionally, the company was ordered to pay $20,000 in agreed prosecution costs. The court emphasised the importance of ensuring safety in the workplace, particularly the need for head contractors to supervise subcontractors and trades effectively to prevent such incidents.
Orders
Orders of the court
(1) The offender is convicted.
(2) Order the offender to pay a fine of $75,000
(3) Order that 50% of the fine is to be paid to the prosecutor.
(4) Order the offender to pay the prosecutor’s costs agreed in the sum of $20,000
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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