SafeWork NSW v CTN Construction Pty Limited - [2017] NSWDC 340

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 $20,000

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 – 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 safety
Legislation Cited: Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Regulation 2011
Cases 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 178
Texts 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 2010
Category: Sentence
Parties: SafeWork NSW
CTN Construction Pty Limited
Representation:
Counsel:
M. Scott (prosecutor)
L. Katsinas (defendant)
Solicitors:
SafeWork NSW (prosecutor)
David Chang Legal (defendant)

File Number(s): 2016/00319998

Judgment

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.
The maximum penalty for the offence is a fine of $1,500,000.

BACKGROUND

The prosecutor tendered an Agreed Statement of Facts and an Agreed Sentence Tender Bundle which forms the basis of the background set out below.
The offender was a registered corporation which conducted the business or undertaking of residential building and construction. It had been in business for…

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: [2017] NSWDC 340
Decision Date: 29 November 2017

CaseChat Overview and Summary

SafeWork NSW prosecuted CTN Construction Pty Limited for breaches of work health and safety legislation, following an incident where a worker fell from a height. The dispute was heard in the Local Court of New South Wales. The key legal issues were whether CTN Construction had fulfilled its duty under the work health and safety laws, particularly concerning the risk of death or serious injury, and if so, what the appropriate penalty should be considering the circumstances of the offence.

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

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 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 $20,000
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 – 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 safety
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Regulation 2011
Cases 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 178
Texts 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 2010
Category:	Sentence
Parties:	SafeWork NSW CTN Construction Pty Limited
Representation:	Counsel: M. Scott (prosecutor) L. Katsinas (defendant) Solicitors: SafeWork NSW (prosecutor) David Chang Legal (defendant)
File Number(s):	2016/00319998