SafeWork NSW v Epic Machinery Pty Ltd - [2021] NSWDC 398

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Epic Machinery Pty Ltd [2021] NSWDC 398
Hearing dates: 11 August 2021
Date of orders: 13 August 2021
Decision date: 13 August 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect the early plea.
(3)   Accordingly, I order the defendant pay a fine of $150,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $43,247.20.

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 – totality of sentence - appropriate sentence
OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson (2000) 49 NSWLR 383
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:
Australian Standard, AS 4024 (Series) Safety of Machinery
SafeWork NSW Code of Practice, Managing the risk of plant in the workplace (July 2014)

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Epic Machinery Pty Ltd (Defendant)
Representation:
Counsel:
Mr M Moir, for the Prosecutor
Mr P Skinner, for the Defendant
Solicitors:
Mr J Bell Department of Customer Service (for the Prosecutor)
Mr K Rodgers, Brock Partners (for the Defendant)

File Number(s): 2020/209185
Publication restriction: Nil

JUDGMENT

On 3 May 2021, Epic Machinery Pty Ltd (‘Epic’) entered a plea of guilty in respect of…

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: [2021] NSWDC 398
Decision Date: 13 August 2021

CaseChat Overview and Summary

SafeWork NSW prosecuted Epic Machinery Pty Ltd for breaches of work health and safety laws under the Work Health and Safety Act 2011 (NSW). The dispute arose from incidents that led to the death of an employee, with allegations that the company had failed to take reasonable steps to ensure the health and safety of its workers. The case was heard in the Local Court of New South Wales.

The court had to determine whether the company had breached its duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), and if so, the appropriate sentence. The company pleaded guilty to the charges, and the court considered factors such as the objective seriousness of the offence, mitigating and aggravating circumstances, the company’s capacity to pay, and the need for general and specific deterrence.

The court found the offences to be of high objective seriousness due to the death resulting from the breaches. It took into account the early guilty plea as a mitigating factor, reducing the fine by 25%. Despite the company’s significant financial capacity, the court imposed a fine of $150,000.00, with 50% of this amount payable to the prosecutor, and ordered the company to pay the prosecutor’s costs of $43,247.20. The sentence was deemed appropriate given the circumstances and the need to deter future breaches.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect the early plea.

(3) Accordingly, I order the defendant pay a fine of $150,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $43,247.20.

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 Epic Machinery Pty Ltd [2021] NSWDC 398
Hearing dates:	11 August 2021
Date of orders:	13 August 2021
Decision date:	13 August 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $150,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $43,247.20.
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 – totality of sentence - appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson (2000) 49 NSWLR 383 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited:	Australian Standard, AS 4024 (Series) Safety of Machinery SafeWork NSW Code of Practice, Managing the risk of plant in the workplace (July 2014)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Epic Machinery Pty Ltd (Defendant)
Representation:	Counsel: Mr M Moir, for the Prosecutor Mr P Skinner, for the Defendant Solicitors: Mr J Bell Department of Customer Service (for the Prosecutor) Mr K Rodgers, Brock Partners (for the Defendant)
File Number(s):	2020/209185
Publication restriction:	Nil