SafeWork NSW v Enviro Pallets Pty Ltd - [2024] NSWDC 59

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Enviro Pallets Pty Ltd [2024] NSWDC 59
Hearing dates: 5 March 2024
Date of orders: 8 March 2024
Decision date: 08 March 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Enviro Pallets Pty Ltd is convicted.
(2)   The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Enviro Pallets Pty Ltd to pay a fine of $300,000.
(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 Enviro Pallets 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 – pallet making machine – worker underneath – struck while performing maintenance – fatal injuries – failure to conduct risk assessment – failure to electrically isolate – failure to guard

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
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 risks of plant in the workplace, August 2019
Australian/New Zealand Standard AS/NZS 4024.1201:2014 Safety of Machinery
WorkSafe Victoria, Checklist - isolating plant, June 2011
WorkSafe Victoria, Guidance Note Isolating plant, June 2011

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Enviro Pallets Pty Ltd (Defendant)
Representation:
Counsel:
M Moir (Prosecutor)
M Shume (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Hamilton Locke (Defendant)

File Number(s): 2021/256600

Judgment

On 11 September 2019 Mr Mathew Spann, an employee of Enviro Pallets Pty Ltd (Enviro), was underneath a pallet making machine (the machine) investigating a problem with a sensor. The machine’s metal arm struck and trapped Mr Spann’s head. Mr Spann’s injuries were fatal.
Enviro Pallets Pty Ltd has pleaded guilty to an offence that as a person…

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.

Continue reading SafeWork NSW v Enviro Pallets Pty Ltd

Details

AGLC: SafeWork NSW v Enviro Pallets Pty Ltd [2024] NSWDC 59
Case: [2024] NSWDC 59
Decision Date: 08 March 2024

CaseChat Overview and Summary

SafeWork NSW initiated proceedings against Enviro Pallets Pty Ltd in the Local Court of New South Wales. The case arose from the death of a worker who was fatally injured while performing maintenance on a pallet making machine. The prosecution alleged that the company failed to conduct a risk assessment, did not electrically isolate the machine, and did not adequately guard the machine, which contributed to the worker’s death.

The court had to determine whether the company breached its duty under work health and safety legislation to ensure the safety of its workers and prevent the risk of death or serious injury. The legal issues involved assessing the objective seriousness of the offence, evaluating mitigating and aggravating factors, and determining an appropriate penalty. The court also needed to consider the impact of the company’s early guilty plea, the need for general and specific deterrence, and the company’s capacity to pay the penalty.

The court found that the company’s failure to take necessary safety measures demonstrated a significant breach of its duty under the relevant legislation, leading to the worker's death. The early guilty plea was a mitigating factor, warranting a 25% reduction in the fine. The court emphasised the importance of general deterrence to prevent similar incidents in the future. After weighing all factors, the court imposed a fine of $300,000, with 50% to be paid to the prosecutor and the balance to cover prosecution costs.

The court made several orders, including a conviction against Enviro Pallets Pty Ltd, a reduction in the fine due to the early plea, and an order for the company to pay the prosecutor’s costs.

Orders

Orders of the court

(1) Enviro Pallets Pty Ltd is convicted.

(2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Enviro Pallets Pty Ltd to pay a fine of $300,000.

(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 Enviro Pallets Pty Ltd to pay the prosecutor’s costs.

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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Medium Neutral Citation:	SafeWork NSW v Enviro Pallets Pty Ltd [2024] NSWDC 59
Hearing dates:	5 March 2024
Date of orders:	8 March 2024
Decision date:	08 March 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Enviro Pallets Pty Ltd is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Enviro Pallets Pty Ltd to pay a fine of $300,000. (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 Enviro Pallets 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 – pallet making machine – worker underneath – struck while performing maintenance – fatal injuries – failure to conduct risk assessment – failure to electrically isolate – failure to guard
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 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 risks of plant in the workplace, August 2019 Australian/New Zealand Standard AS/NZS 4024.1201:2014 Safety of Machinery WorkSafe Victoria, Checklist - isolating plant, June 2011 WorkSafe Victoria, Guidance Note Isolating plant, June 2011
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Enviro Pallets Pty Ltd (Defendant)
Representation:	Counsel: M Moir (Prosecutor) M Shume (Defendant) Solicitors: Department of Customer Service (Prosecutor) Hamilton Locke (Defendant)
File Number(s):	2021/256600