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 deterrenceLegislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011Cases 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 465Texts 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 PracticeCategory: Sentence Parties: SafeWork NSW (Prosecutor)
Cilin Cai (Defendant)
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- Case
- [2018] NSWDC 398
- Decision Date
CaseChat Overview and Summary
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
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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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