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SafeWork NSW v Grandcity Constructions Pty Ltd

SafeWork NSW v Grandcity Constructions Pty Ltd

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Case Copied 14 December 2018 22 min read

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Hearing dates: 6 December 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
IN RELATION TO GRANDCITY CONSTRUCTIONS PTY LTD

(1) The offender is convicted of an offence under s 19 of the Work Health and Safety Act 2011.
(2)   The appropriate fine is $160,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $120,000.
(4) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000.

IN RELATION TO CILIN CAI:
(1) The offender is convicted of an offence under s 27 of the Work Health and Safety Act 2011.
(2)   The appropriate fine is $32,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $24,000.
(4) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000.
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 risk assessment – need for edge prevention system – prevalence of prosecutions for falls from height – importance of general deterrence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
Cases Cited: Baumer v R (1998) 166 CLR 51
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Jahandideh v R [2014] NSWCCA 178
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
R v Irvine; R v Dynamic Industries Pty Limited [2000] VSCA 239
R v McNaughton (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Opcon Plumbing Pty Limited [2018] NSWDC 350
SafeWork NSW v Ru Dong Li [2018] NSWDC 189
Veen v R (No. 2) (1998) 164 CLR 465
Texts Cited: Australian New Zealand Standard 4994.1:2009 on Temporary Edge Protection
SafeWork Australia Managing the Risk of Falls at Workplaces Code of Practice
WorkCover Preventing Falls in Housing Construction Code of Practice
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Cilin Cai (Defendant)

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: [2018] NSWDC 398
Decision Date: 14 December 2018

CaseChat Overview and Summary

SafeWork NSW prosecuted Grandcity Constructions Pty Ltd and Cilin Cai under the Work Health and Safety Act 2011. The dispute arose from the death of a worker who fell from a height of approximately 3.5 metres while working at a construction site. The court was tasked with determining the criminal liability of Grandcity Constructions and Cilin Cai, and the appropriate penalties to be imposed. The primary legal issue before the court was whether the defendants had breached their duties under the Act by failing to provide a safe work environment, which resulted in the worker's death.

The court found that Grandcity Constructions had breached its duty to ensure the health and safety of its workers by failing to implement adequate risk assessments and edge prevention systems at the construction site. The court also held that Cilin Cai, as an officer of the company, had failed to exercise due diligence in ensuring the company complied with its statutory obligations. The court considered the objective seriousness of the offence, the need for general deterrence, and the mitigating factors such as the company's plea of guilty and its efforts to improve its safety practices post-incident. The court concluded that the objective seriousness of the offences warranted significant fines, reduced by a quarter due to the pleas of guilty.

The court imposed a fine of $120,000 on Grandcity Constructions, to be reduced by 25% due to the plea of guilty, and ordered that half of the fine be paid to the prosecutor. Additionally, Grandcity Constructions was required to pay the agreed costs of $45,000. For Cilin Cai, the court imposed a fine of $24,000, also reduced by 25% due to the plea of guilty, and ordered that half of the fine be paid to the prosecutor. Cilin Cai was also required to pay the agreed costs of $45,000. The court emphasised the importance of general deterrence in work health and safety prosecutions, particularly in light of the prevalence of falls from height cases.

Orders

Orders of the court

IN RELATION TO GRANDCITY CONSTRUCTIONS PTY LTD

(1) The offender is convicted of an offence under s 19 of the Work Health and Safety Act 2011.

(2) The appropriate fine is $160,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order the offender to pay a fine of $120,000.

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

(5) Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000.

IN RELATION TO CILIN CAI:

(1) The offender is convicted of an offence under s 27 of the Work Health and Safety Act 2011.

(2) The appropriate fine is $32,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order the offender to pay a fine of $24,000.

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

(5) Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000.

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 Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Hearing dates:	6 December 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	IN RELATION TO GRANDCITY CONSTRUCTIONS PTY LTD (1) The offender is convicted of an offence under s 19 of the Work Health and Safety Act 2011. (2) The appropriate fine is $160,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $120,000. (4) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000. IN RELATION TO CILIN CAI: (1) The offender is convicted of an offence under s 27 of the Work Health and Safety Act 2011. (2) The appropriate fine is $32,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $24,000. (4) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor’s costs agreed in the amount of $45,000.
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 risk assessment – need for edge prevention system – prevalence of prosecutions for falls from height – importance of general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011
Cases Cited:	Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Jahandideh v R [2014] NSWCCA 178 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 R v Irvine; R v Dynamic Industries Pty Limited [2000] VSCA 239 R v McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Opcon Plumbing Pty Limited [2018] NSWDC 350 SafeWork NSW v Ru Dong Li [2018] NSWDC 189 Veen v R (No. 2) (1998) 164 CLR 465
Texts Cited:	Australian New Zealand Standard 4994.1:2009 on Temporary Edge Protection SafeWork Australia Managing the Risk of Falls at Workplaces Code of Practice WorkCover Preventing Falls in Housing Construction Code of Practice
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Cilin Cai (Defendant)