Safework NSW v Emu Group Pty Limited - [2019] NSWDC 537

District Court

New South Wales

Medium Neutral Citation: Safework NSW v Emu Group Pty Limited [2019] NSWDC 537
Hearing dates: 2 October 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Emu Group Pty Limited was convicted on 2 October 2019.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order Emu Group Pty Limited to pay a fine of $180,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order Emu Group Pty Limited to pay the prosecutor’s costs agreed in the amount of $24,000.

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

COSTS - prosecution costs
OTHER – fall through unprotected void on construction site
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011
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
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
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 Ru Dong Li [2018] NSWDC 189
Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited: Australian/New Zealand Standard 1576.1:2010 Scaffolding, Part 1: General Requirements
Managing the Risk of Falls at Workplaces (March 2015)
Managing the Risk of Falls at Workplaces Code of Practice (April 2016)
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Emu Group Pty Limited (Defendant)
Representation:
Counsel:
T Hammond (Prosecutor)
M Scott (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Kekatos Lawyers (Defendant)

File Number(s): 2018/253107

Judgment

BACKGROUND

On 16 September 2016 Mr Rzkar Kareem Hamasaeed was working as a painter at 17-21 The Crescent, Fairfield, New South Wales (the workplace). He fell through an unprotected stair void onto a concrete floor and suffered serious injuries.
By an Amended Summons dated 3 June 2019 it was alleged by the prosecutor SafeWork NSW that Emu…

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: [2019] NSWDC 537
Decision Date: 04 October 2019

CaseChat Overview and Summary

Safework NSW prosecuted Emu Group Pty Limited for an incident involving a worker who fell through an unprotected void on a construction site. The court was required to determine whether Emu Group Pty Limited had breached its duty under the work health and safety legislation, specifically concerning the risk of death or serious injury. Additionally, the court had to assess the appropriate penalty, considering the objective seriousness of the offence, any mitigating or aggravating factors, the company's plea of guilty, and the objectives of general and specific deterrence. The court also needed to determine whether the prosecutor was entitled to costs.

The court found that Emu Group Pty Limited had failed to ensure the safety of its workers by not properly guarding the unprotected void. It considered the objective seriousness of the offence, the company's early guilty plea, and the need for both general and specific deterrence in arriving at an appropriate penalty. The court ordered a fine of $240,000, reduced by 25% due to the guilty plea, resulting in a total fine of $180,000. It further directed that half of the fine be paid to the prosecutor and ordered Emu Group Pty Limited to pay the prosecutor's costs of $24,000.

Emu Group Pty Limited was convicted on 2 October 2019. The court ordered a fine of $180,000, with 50% of that amount to be paid to the prosecutor, and ordered Emu Group Pty Limited to pay the prosecutor’s costs in the amount of $24,000. The court's decision reflects the importance of workplace safety and the consequences of failing to comply with occupational health and safety legislation.

Orders

Orders of the court

(1) Emu Group Pty Limited was convicted on 2 October 2019.

(2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order Emu Group Pty Limited to pay a fine of $180,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

(5) Order Emu Group Pty Limited to pay the prosecutor’s costs agreed in the amount of $24,000.

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 Emu Group Pty Limited [2019] NSWDC 537
Hearing dates:	2 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Emu Group Pty Limited was convicted on 2 October 2019. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Emu Group Pty Limited to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order Emu Group Pty Limited to pay the prosecutor’s costs agreed in the amount of $24,000.
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 COSTS - prosecution costs OTHER – fall through unprotected void on construction site
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011
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 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 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 Ru Dong Li [2018] NSWDC 189 Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian/New Zealand Standard 1576.1:2010 Scaffolding, Part 1: General Requirements Managing the Risk of Falls at Workplaces (March 2015) Managing the Risk of Falls at Workplaces Code of Practice (April 2016)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Emu Group Pty Limited (Defendant)
Representation:	Counsel: T Hammond (Prosecutor) M Scott (Defendant) Solicitors: SafeWork NSW (Prosecutor) Kekatos Lawyers (Defendant)
File Number(s):	2018/253107