SafeWork NSW v Force Fire & Safety Pty Ltd

[2023] NSWDC 217

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Force Fire & Safety Pty Ltd [2023] NSWDC 217

Hearing dates:

24 May 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Force Fire & Safety Pty Ltd is convicted.

2   I impose a fine of $300,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Materials Handling dated 12 August 2019

Use of Forklift/Telehandler dated 12 August 2019

Daily Prestart Sheet, Moving Plant/Separation from people (Plant Zones)

Site Induction Record – Delivery Driver Checklist in BIM360

WHS Specification for Subcontractors NSW

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Force Fire & Safety Pty Ltd (Defendant)

Representation:

Counsel:
B Docking (Prosecutor)
B Hodkinson SC (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Gillis Delaney Lawyers (Defendant)

File Number(s):

2021/262518

Publication restriction:

None

JUDGMENT

Introduction

1. Force Fire & Safety Pty Ltd (Force Fire) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act), that it failed to comply with the health and safety duty it owed pursuant to s 19(2) of the Act and thereby exposed Christopher Detroit to a risk of death or serious injury.

2. The maximum penalty for the s 32 offence is a fine of $1.5 million.

Facts

3. The parties presented an Agreed Statement of Facts that can be summarised as follows.

4. Hansen Yuncken manages construction projects in the commercial, health, industrial, hotel and entertainment industries. At all material times, it was carrying out works comprising the design and construction of warehouses and infrastructure services (the project) at Moorebank Logistics Park, 400 Moorebank Avenue, Moorebank (the site). Hansen Yuncken was the principal contractor for the work at the site.

5. Hansen Yuncken engaged Force Fire to undertake the design, supply and installation of fire services and associated works for the site, including a fire sprinkler system, fire detection system, building occupant warning system, and fire extinguishers.

6. At all material times, Force Fire was a registered corporation that conducted a business involving the design, supply and installation of fire safety systems. Force Fire was a subcontractor at the site.

7. Force Fire was contractually obliged to review and make appropriate allowance for compliance with Hansen Yuncken’s Traffic Management Plan (TMP) when completing the work. Force Fire was also responsible for all vertical and horizontal movements of any materials, plant and equipment required to complete the work. Ino Rosic was employed by Force Fire as Charge Hand/Sprinkler Fitter/Site Supervisor.

8. On various dates in August and September 2019, Force Fire placed orders with Fire Fabrication Services Pty Ltd (FFS) in South Australia for sprinkler pipes and fire service pipes to be delivered to the site.

9. Craig Arthur Pty Ltd (Craig Arthur) was, at all material times, a business or undertaking involving transport and logistics services based in South Australia. It employed 136 people and operated a fleet of 30 trucks and 60 trailers Australia wide.

10. Craig Arthur was engaged through MFD Linehaul company to deliver fire services pipes from South Australia to various businesses in the Sydney region by 16 September 2019. To complete this job, Craig Arthur provided a B-double truck consisting of a prime mover, a lead trailer and a semi-trailer. A delivery to a site in Eastern Creek was transported on the lead trailer and the delivery for the site was transported in semi-trailer. The lead trailer was about 2.5m wide and 8m long. The semi-trailer was about 2.5m wide and 14m long. Both trailers had gates and curtains which could be opened on either side.

11. Craig Arthur was paid $4,600 for both deliveries.

12. Craig Arthur engaged Mr Detroit as an interstate truck driver to undertake the pipe deliveries using the B-double truck. At the time, Mr Detroit had approximately 40 years of experience as a truck driver. He had been engaged by Craig Arthur for five years.

The pipe deliveries    

13. On 13 September 2019, the fire services pipes were loaded onto the B-double truck by Fire Fabrication Services, in two stacks weighing a total of about 19 tonnes. The pipes were at least 6m in length and were of various diameters and weights. This included two 250NB pipes with a 273.1mm diameter that were strapped together and weighed 31.75kg per metre each. The estimated combined weight of the two pipes was about 380kg.

14. On 14 September 2019, Mr Detroit departed South Australia in the B-double to make the two pipe deliveries.

16 September 2019

Eastern Creek delivery

15. At or around 8:00am, Mr Detroit arrived at the Eastern Creek site. After the pipes were unloaded, Mr Detroit packed up the B-double and exited the Eastern Creek site.

Delivery to the site

16. On 16 September 2019, Hansen Yuncken had 15 employees working at the site. Force Fire had five employees working at the site, including Mr Rosic.

17. A daily prestart meeting was held at the site, where Force Fire advised Hansen Yuncken that the pipe delivery was expected that day. On the Daily Prestart Sheet, “Moving Plant/Separation from people (Plant Zones)” was ticked as one of the “Significant Hazards Today”.

18. At around 11:30am, Mr Detroit arrived at the Moorebank site. Mr Rosic had been informed by Force Fire’s Project Manager, Alex Locatelli, that the pipe delivery would be arriving on 16 September 2019 via a B-double truck.

19. The Hansen Yuncken incident report notes that, “It is understood that there was no traffic controller stationed at Gate 3 at this time.”

20. Various Hansen Yuncken signage on the west-facing access gate stated that visitors and deliveries had to report to the site office and that all site personnel must be inducted onto the site before commencement.

21. Hansen Yuncken’s “WHS Specification for Subcontractors NSW” dated August 2018 stated that delivery drivers were required to report to either the site office or security gate. Delivery drivers were required under this document to complete the “Site Induction Record – Delivery Driver Checklist in BIM360” prior to proceeding onto the site to make the delivery. Failure to do so would result in the vehicle not being unloaded and sent off the site.

22. A security guard observed Mr Detroit drive the B-double the wrong way through the Moorebank site. The guard then escorted him to the Hansen Yuncken site. Mr Detroit was instructed to drive to Gate 3, where someone would meet him.

23. Mr Detroit drove to Gate 3, but there was no traffic controller stationed, so he stopped between warehouses 3 and 4.

24. Mr Rosic was operating a telehandler in warehouse 4 when he saw Mr Detroit walking toward him without a hard hat or visibility vest. Mr Detroit approached Mr Rosic and asked if he was the person that he was supposed to meet. Mr Rosic instructed Mr Detroit to go back to the B-double, put on a hard hat and wait for him. Mr Rosic then asked Mr Detroit why he did not call him prior to coming onto the Moorebank site. Mr Detroit stated that his mobile was not working.

25. After completing his other task, Mr Rosic drove the telehandler to the B-double, and escorted Mr Detroit to warehouse 4.

26. After arriving at warehouse 4, Mr Detroit opened the curtains and side gates of the semi-trailer and unstrapped the load. Mr Rosic then unloaded some pipes from the passenger side using the telehandler. Mr Rosic then instructed Mr Detroit to accompany him to Warehouse 3 to unload the larger 22NB-250NB pipes.

27. After arriving at Warehouse 3, Mr Detroit opened the curtains on the driver’s side of the trailer and the side gates, with the assistance of Mr Rosic.

28. Mr Rosic then started unloading the pipes from the driver’s side, as it was closer to where he was going to place the load on the Moorebank site. After unloading the first load of pipes, Mr Detroit approached Mr Rosic in the telehandler and asked if he could have a length of rope which was currently in the skip bin, some distance from the rear of the B-double. Mr Rosic agreed and commenced unloading the second bundle of pipes.

29. While observing the telehandler with the second bundle of pipes, Mr Rosic observed Mr Detroit at the skip bin, talking to a person. Mr Rosic placed the second load of pipes in the laydown area and returned to the driver’s side of the B-double to pick up the third bundle, which were positioned on the passenger side of the truck.

30. The third bundle of pipes consisted of the two 250NB diameter pipes, strapped together.

31. Sometime between Mr Rosic reversing back with the second bundle of pipes and picking up the third bundle of pipes, Mr Detroit returned to the B-double from the skip bin without being seen by Mr Rosic. Mr Detroit bent down on the passenger’s side of the B-double, to place the rope from the skip bin in the toolbox.

32. While Mr Detroit was on the passenger’s side of the B-double, Mr Rosic was on the driver’s side. Mr Rosic was attempting to pick up the third bundle of pipes but was unable to see the tips of the tynes from inside the telehandler. At this point, the load fell from the passenger’s side of the truck onto Mr Detroit. A witness stated that the load fell from above Mr Detroit’s head, hitting him on the head and causing him to fall backwards, with the pipes ending up on his thigh area. Mr Detroit was rendered unconscious.

Injuries and fatality

33. On 2 October 2019, Mr Detroit passed away whilst at Liverpool Hospital, as a result of the injuries sustained in the incident.

Admissions

Force Fire

34. Force Fire admitted the following in relation to its systems of work prior to the incident:

1. Mr Rosic, as the person unloading the truck, was responsible for implementing the system or procedure to prevent the load falling from the trailer while it was being unloaded. This procedure required an 8m exclusion zone, ensuring that one side of the truck is closed, use of witches hats, danger tape and cones that are provided.

2. The SWMS did not provide for a specific driver safety zone, although there was an 8m exclusion zone.

3. Mr Rosic was inducted and trained in the SWMS.

4. Force Fire were responsible for and had control over the unloading of the pipes.

5. Danger tape, witches hats and cones were provided to Mr Rosic.

Systems of work prior to the incident

35. Prior to the incident, Force Fire did not do the following:

1. Designate and enforce an adequate safety zone for delivery drivers to be located in while the truck was being unloaded, adequate no-go zones around unloading areas and adequate pedestrian exclusion zones around the truck being unloaded.

2. Provide and enforce the use of an effective communication system between powered mobile plant between powered mobile plant operators and the delivery driver during unloading.

3. Require and enforce use of a competent spotter to supervise the unloading of trucks and to ensure that safety, no-go and exclusion zones were observed.

4. (4)   Require that unloading cease until safety zones, no-go zones and exclusion zones were implemented.

5. (5)   Provide and maintain safe plant with appropriate attachments for the work that was appropriate to safely unload, lower to the ground and handle the wide pipe loads that were being delivered to the site.

6. (6)   Prepare, cause to be prepared, or enforce an adequate SWMS concerning the location of the delivery driver during these activities in a driver safety zone and the requirement of an observer or spotter.

36. Force Fire did have work health and safety systems comprising of a “Subby Pack”, SWMSs, inductions, training, supervision and toolbox meetings. However, this material did not address excluding drivers from the unloading area. Force Fire had a SWMS titled “Use Forklift/Telehandler”, which required a minimum 8m exclusion zone to be established around the telehandler load and unload areas. However, this was not implemented on the day of the incident.

Steps taken after the incident

37. Force Fire took the following steps following the incident:

1. Replaced the tyne attachment to its telehandlers from a 2-tyne to a 4-tyne forklift attachment. It now has a 2-tyne system utilising pins to better secure fire services pipes;

2. Updated its SWMS, including in relation to materials handling and use of forklifts/telehandlers. These updates included the following:

1. requirement for a driver safety zone/exclusion zone, and for work to not commence until this was implemented;

2. a requirement that a spotter be in place outside of the loading/unloading zone;

3. a requirement for the use of a load spreader attachment for any length of pipe longer than 3.25m; and

4. a requirement for pipes to be delivered by trucks fitted with hiabs attached to unload pipes.

Offender’s Case on Sentence

38. Force Fire tendered the affidavit of Paul Diego Richetti sworn on 22 May 2023.

39. Mr Richetti is the Managing Director of Force Fire. He has an Associate Diploma in Mechanical Technology from TAFE. He started working at Force Fire in 2006 as a Project Manager. He was appointed as director in November 2008.

40. The company was registered in March 2005 by Paul Gatt, a former director.

41. Force Fire is a widely recognised name in fire system design and installation in the industrial, commercial and large-scale residential sectors.

42. Force Fire now employs approximately 180 staff and operates in New South Wales and Queensland.

43. The company has been involved in a number of large projects over the years, including the Locker Room and Boomerang Tower at Sydney Olympic Park, Veriu Hotel in Sydney and Chatswood Place in Chatswood.

Systems of work prior to the incident

44. For each job, Force Fire implements relevant SWMS. The following staff were responsible for developing and implementing relevant SWMS:

1. David Adamson – General Manager.

2. Alex Locatelli – Project Manager.

3. Tim Wykes – Supervisor.

4. Ino Rosic – Charge Hand.

45. As at 16 September 2019, Mr Adamson as General Manager, was responsible for developing and implementing relevant SWMS. Once Mr Adamson had developed the SWMS, they were sent to Mr Locatelli who, once he had familiarised himself with the document, met with Mr Wykes to discuss it.

46. In relation to the project, Force Fire had in place the following SWMS:

1. “Use of Forklift/Telehandler” dated 12 August 2019; and

2. “Materials Handling” dated 12 August 2019.

47. Both SWMS were submitted to Hansen Yuncken for approval prior to commencing work at the site. The SWMS required approval from Hansen Yuncken before work could commence.

48. At each site, including the Moorebank site, Force Fire employees and contractors were required to undertake a site induction, in addition to the site induction carried out by the principal contractor. In the Force Fire site induction, each employee or contractor was taken through the relevant SWMS and provided an opportunity to ask questions or discuss the material in the SWMS. Each employee was required to sign the SWMS once they were confident that they understood it.

49. Mr Wykes then met with Ino Rosic to run through the SWMS and they both had to sign it to acknowledge that they understood it. Mr Wykes and Mr Rosic signed both SWMS for the project on 26 August 2019.

50. At the Moorebank site, Force Fire Project Managers and Site Supervisors attended the site regularly to check the work and this included performing spot checking compliance with safety systems in place at the site.

51. Daily prestart meetings were conducted by Hansen Yuncken, which were attended by all Force Fire employees and contractors. At these meetings, proposed work for all contractors on site was discussed. Force Fire also held weekly toolbox talks to discuss safe performance of work and all employees were given the opportunity to raise safety issues.

52. Force Fire’s “Use of Forklift/Telehandler” SWMS required an 8m exclusion zone to be implemented around the telehandler loading and unloading areas.

53. Force Fire’s employees at the Moorebank site were provided with danger tape, witches hats and cones/bollards that were used to create an exclusion zone, consistent with the SWMS.

Systems of work after the incident

54. Following the incident, Mr Rosic was counselled about his breach of the SWMS by Mr Adamson and Mr Richetti. He was instructed that this could not happen again and he accepted that he had breached the company’s safety requirements to implement an 8m exclusion zone. Mr Rosic was personally affected by the incident and his role in it. He took time off and underwent counselling.

55. All Force Fire staff were offered free counselling in the 24 hours after the incident.

56. Force Fire implemented an amended SWMS for the project in October 2019.

57. It now reviews its SWMS every six months. It has 11 SWMS, three of which are relevant to unloading pipes from trucks. The most recent review was on 25 May 2023.

58. Immediately following the incident, Force Fire changed its SWMS regarding unloading pipes from trucks. First, all pipes leave the manufacturer in bundles/stacks that have been strapped at the source. Further, it no longer has pipework trucked directly from the manufacturer to the site and instead, the large interstate articulated trucks that transport pipes, go to a third-party holding yard equipped for the unloading of pipes from those trucks. Upon arrival at the third-party holding yard, the pipes are placed on smaller flatbed trucks only one bundle high. Each flatbed truck is equipped with a hydraulic crane lifting device. No forklifts or telehandlers are used to unload the pipes at the site. The bundle of pipes is unloaded from the back of the flatbed truck using hydraulic crane devices on that truck. This process eliminates the risk of pipes sliding off the forklift tynes and striking someone.

59. Once the pipes are unloaded to ground level, the telehandler is then used to move the pipes. The pipes are never higher than 1m off the ground.

60. After the incident, Force Fire trialled a 4-tyne attachment instead of 2-tyne for telehandlers. Force Fire was in regular contact with a SafeWork NSW Inspector throughout this process. In 2020, Force Fire engaged East West Engineering to design a new 2-tyne system using pins. This was rolled out in July 2020 and is now used on all Force Fire telehandlers. The use of pins in the new 2-tyne system eliminates the risk of the pipe bundle rolling off the tynes and ensures that the bundle is secured.

61. In around August 2020, Force Fire engaged Employsure to develop a Safety Handbook. This was rolled out to all Force Fire staff in October 2020.

62. Force Fire’s management committee meets monthly to review Force Fire’s safety performance and implement initiatives to target any risk areas.

63. In May 2020, Force Fire formed a Safety Committee which conducts monthly safety meetings. The Committee is comprised of different workers who are invited, along with the following people:

1. Michael Dirckze (CEO);

2. Mr Richetti;

1. Bryan Starkey (CFO);

2. Stephanie Jensen (Operations and HR Manager);

3. Roger Stabelmann and Arran Mugica (Construction Managers);

4. Andrew Lee (Design Manager);

5. David Brcic, Michael Stepic, Tim Wykes, Pete Docherty and Levi Ryanhart (Supervisors);

6. Jack Setterfield, Ash Burton-Smith and Paul Watkins (Charge Hands); and

7. Nick Taylor from Altius Group, which Force Fire engaged in November 2021 on a permanent retainer basis as the company’s safety consultants.

64. Force Fire has implemented a zero tolerance policy for safety breaches. Any safety breach now results in a formal warning to staff. An employee who has numerous breaches can be dismissed, depending on the severity of the breaches.

65. In March 2021, Force Fire provided risk management training to all project managers and supervisors. This training was delivered through the “Employment Hero” App.

66. Every staff member of Force Fire has this App and all employees have now received training in risk management through the App. The company checks that all staff have completed the training.

67. In July 2021, in partnership with Procare, Force Fire implemented an Employee Assistance Program for all Force Fire employees. Procare provides free and confidential professional counselling services for work and non-work related issues that may impact staff wellbeing.

68. In August 2021, the company conducted a company wide employee survey to determine how it could best support them through the lockdowns.

69. There are “Safety Days” every six months which all staff must attend. Three such meetings have been held thus far. The purpose of these meetings is to update all staff on the company’s safety performance, highlight key risk areas and enforce the Safety Cardinal Rules which have been implemented by Force Fire.

70. Altius Group attends the “Safety Days” and does presentations on these days. It also provides assistance with writing and reviewing the SWMS, attending sites to review methodologies and any one-off or detailed SWMS documents that may be required.

71. Force Fire participates in various sponsorships, community and charity events, which were listed in Mr Richetti’s affidavit.

72. When Mr Detroit’s family attended the Moorebank site after his death, Mr Richetti attended the site to explain what Force Fire had been doing on the day of the incident and how the incident occurred. He apologised to the family on behalf of Force Fire on that day.

Apology

73. Mr Richetti apologised on behalf of Force Fire for Mr Detroit’s death, recognising the impact that this has had on Mr Detroit’s family, friends and community. He recognised that Force Fire’s WHS systems were not sufficient to prevent exposure to the risk that resulted in his death.

Consideration

74. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

75. The risk posed to a worker such as Mr Detroit during unloading a truck using mobile plant was obvious and well known to the offender and in the industry. The offender recognised the risk and provided for an 8m exclusion zone to be established when the telehandler was being used to unload trucks in the Materials Handling SWMS. The offender trained its workers on the SWMS and provided the necessary equipment and materials to set up the exclusion zone. The system was not as comprehensive as it could have been by reference to the objective guidance material available, however, had the exclusion zone been implemented as was provided for by the SWMS, it would have prevented the injury to Mr Detroit.

76. Mr Rosic failed to set up and enforce the exclusion zone as intended by the SWMS. He failed to keep Mr Detroit away from where the telehandler was being used to unload the truck. Mr Detroit also failed to have regard for his own safety. The offender had in place supervisory checks to ensure that the SWMS was being complied with, but they were inadequate to prevent Mr Rosic’s failure to implement the system on the day of the incident.

77. The likelihood of the risk coming home was low if appropriate precautions were taken, but moderate to high if they were not taken.

78. By its plea, the offender admitted that it could have taken the following reasonably practicable steps:

1. providing and maintaining adequate safety zones for drivers, no- go zones around unloading areas and a pedestrian exclusion zone around the truck being unloaded;

2. providing an effective communication system between mobile plant operators and delivery drivers to ensure that the mobile plant operator knew the location of the driver at all times;

3. providing a spotter to obverse the unloading of trucks using mobile plant;

4. providing mobile plant with appropriate attachments for the unloading of pipes; and

5. enforcing an adequate SMWS concerning the location of the driver in a driver safety zone and the use of a spotter.

79. Each of the identified steps, with the exception of (d), were relatively inexpensive and could have been implemented with minimal inconvenience to the offender. The introduction of specialised attachments for the telehandler to provide for the safe unloading of pipes was an engineering control that required some forethought and more significant expense.

80. The consequences of the risk included a risk of death.

81. The death of Mr Detroit is an aggravating factor.

82. I have taken into account the maximum penalty for the offence.

Deterrence

83. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

84. There is a need for specific deterrence, but it is significantly reduced. The offender had in place a system that, if implemented and enforced, would have prevented the incident and the death of Mr Detroit. Further, the offender’s response to the incident was exemplary. The offender took all of the steps referred to in [78] above, as well as ceasing deliveries on large trucks coming directly to its sites. After the incident, it had the pipes unloaded off-site at specialised yards and transferred to flatbed trucks with mobile hiab cranes on them for delivery to site. The offender also counselled Mr Rosic for his failure to comply with the SWMS on the day of the incident, noting the adverse impact the event had on him. The offender has also incorporated a number of safety initiatives into its operations that provide wide ranging opportunities for its workers to have input into safety matters.

Aggravating factors

85. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.  In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question:  R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Detroit is sufficient to establish the aggravating factor.

Mitigating factors

86. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been operating since 31 March 2005.

87. The offender is unlikely to re-offend: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This is one of the rare cases in this jurisdiction where I am satisfied by reference to the offender’s response to the incident that it is unlikely to re-offend.

88. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the steps it took in response to the incident, that it has excellent prospects of rehabilitation.

89. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Richetti, on behalf of the offender, accepted responsibility for its actions and expressed remorse for its failings. Mr Richetti facilitated a site visit by Mr Detriot’s family and apologised to them in person at that time. I am satisfied that the incident had a significant impact on the offender and that it is committed to avoiding future safety breaches.

90. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

91. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

92. The offender is a good corporate citizen. The offender has provided financial support to a number of community organisations and charitable causes.

Penalty

93. Force Fire & Safety Pty Ltd is convicted.

94. The appropriate fine is one of $400,000 which will be reduced by 25% to reflect the plea of guilty.

95. I impose a fine of $300,000.

96. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

97. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

**********

Amendments

23 June 2023 - Inclusion of SafeWork NSW in the case name

Decision last updated: 23 June 2023