SafeWork NSW v HLH NSW Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501

Hearing dates:

14 November 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   HLH NSW Pty Ltd is convicted.

2   I impose a fine of $82,500.

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

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

Catchwords:

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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011

Cases Cited:

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

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Borkowski (2009) 195 A Crim R 1

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
HLH NSW Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
M Cahill (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Prosecutor)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2023/39323

Publication restriction:

None

JUDGMENT

Introduction

1. HLH NSW Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 33 of the Work Health and Safety Act 2011 (NSW) (the Act), in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act.

2. The maximum penalty for the offence is a fine of $588,540.

Facts

3. The offender conducted a business that supplies temporary labourers and tradespeople in the construction industry. The offender had two directors, Alisha Pritchard and Sorcha Hunter.

4. In January 2021, the offender was engaged by Harbour City Roofing to provide general labourers to assist with works being carried out at the Hurstville Aquatic Leisure Centre (the site). The site comprised three main areas, namely the aquatic centre, gymnasium and stadium. Roofing works were being conducted at the Aquatic Centre.

5. On 27 January 2021, Mr Spillane commenced employment with the offender as a labour hire worker. On that same day, he was assigned to work with Harbour City Roofing at the site. Mr Spillane had worked in the construction industry as a labourer for some time.

6. The offender had conducted a reference check prior to making an offer of employment to Mr Spillane, to ensure his suitability to perform work as a general labourer. The offender did not provide Mr Spillane with an induction which provided clear consideration of safety issues which might arise on the site. The offender did not provide instructions to Mr Spillane in relation to the need to report safety incidents and hazards and/or how he should…