SafeWork NSW v Hydro Clean (Griffith) Pty Ltd - [2017] NSWDC 264

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264
Hearing dates: 18 September 2017
Date of orders: 22 September 2017
Decision date: 22 September 2017
Jurisdiction: Civil
Before: Judge D. Russell
Decision:
1 The offender is convicted.
2 Order the offender to pay a fine of $120,000.
3 Order that 50% of the fine is to be paid to the prosecutor.
4 Order the offender to pay the prosecutor’s costs agreed at $32,500.

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
Legislation Cited: Work Health and Safety Act 2011;
Crimes (Sentencing Procedure) Act 1999;
Fines Act 1996
Cases Cited: Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
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
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Hydro Clean (Griffith) Pty Ltd (Defendant)
Representation:
Counsel:
Mr D. Nagle (Prosecutor)
Ms C. Lee (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Mackenzie and Vardanega (Defendant)

File Number(s): 2016/334981

Judgment

Hydro Clean (Griffith) Pty Ltd (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mr Domenic Zirilli to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.
I make the following findings of fact.

BACKGROUND

The offender is a corporation, first incorporated in 1996.
Trading as ‘Applied Engineering (Griffith)’, the offender conducted a business in and around the town of Griffith providing light engineering services including welding, manufacturing, fabrication, installation, repairs and sales. It employs 14 people.
Bartter Enterprises Pty Ltd [ACN 000 451 374] (Bartter) was a corporation which conducted a business that involved poultry farming and processing. Bartter operated a processing factory at Murphy Road, Hanwood (the premises).
Country Cranes Pty Ltd trading as MIA Cranes (MIA Cranes) was a corporation which hired cranes and provided crane operators and riggers.
Mr Zirilli was a 24 year…

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: [2017] NSWDC 264
Decision Date: 22 September 2017

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Hydro Clean (Griffith) Pty Ltd for offences under work health and safety legislation. The company was charged with failing to comply with its duty to ensure, so far as reasonably practicable, the health and safety of employees and others. The dispute arose from an incident where a worker was seriously injured, leading to allegations of non-compliance with safety regulations. The case was heard in the Local Court of New South Wales.

The primary legal issues before the court were whether the company had breached its duty of care under the work health and safety legislation and, if so, what the appropriate penalty should be. The court had to consider the objective seriousness of the offence, any mitigating or aggravating factors, and the principles of sentencing, including the need for general and specific deterrence, as well as the principles of totality, remorse, and contrition. The company had pleaded guilty to the charges.

The court found that the company had indeed failed in its duty, leading to the worker's serious injury. It considered the objective seriousness of the offence, noting the potential for death or serious injury, and the lack of any mitigating factors. The plea of guilty was recognised as an aggravating factor in determining the appropriate penalty. The court also noted the need for both general and specific deterrence. After considering the totality of the circumstances, the court imposed a fine of $120,000, with half to be paid to the prosecutor and the remainder to be paid as costs to the prosecutor. The court emphasised the importance of ensuring compliance with work health and safety obligations to protect workers.

The court ordered that Hydro Clean (Griffith) Pty Ltd pay a fine of $120,000, with 50% of that amount to be paid to the prosecutor and the remaining 50% to cover the agreed costs of $32,500 incurred by the prosecutor. The company was also ordered to pay these costs directly to the prosecutor. The court made it clear that this penalty was intended to serve as both a general and specific deterrent, reinforcing the importance of adhering to work health and safety regulations.

Orders

Orders of the court

1 The offender is convicted.

2 Order the offender to pay a fine of $120,000.

3 Order that 50% of the fine is to be paid to the prosecutor.

4 Order the offender to pay the prosecutor’s costs agreed at $32,500.

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 Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264
Hearing dates:	18 September 2017
Date of orders:	22 September 2017
Decision date:	22 September 2017
Jurisdiction:	Civil
Before:	Judge D. Russell
Decision:	1 The offender is convicted. 2 Order the offender to pay a fine of $120,000. 3 Order that 50% of the fine is to be paid to the prosecutor. 4 Order the offender to pay the prosecutor’s costs agreed at $32,500.
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
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	Veen v R (No. 2) (1998) 164 CLR; R v McNaughton (2006) 66 NSWLR 566; Baumer v R (1998) 166 CLR 51; BW v R [2011] NSWCCA 176; R v Wilkinson (No. 5) [2009] NSWSC 432; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37; R v Thomson & Houlton (2000) 49 NSWLR 383; R v Borkowski (2009) 195 A Crim R 1; 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
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Hydro Clean (Griffith) Pty Ltd (Defendant)
Representation:	Counsel: Mr D. Nagle (Prosecutor) Ms C. Lee (Defendant) Solicitors: SafeWork NSW (Prosecutor) Mackenzie and Vardanega (Defendant)
File Number(s):	2016/334981