SafeWork NSW v J and CG Constructions Pty Limited - [2020] NSWDC 614

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614
Hearing dates: 6 October 2020
Date of orders: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   J & CG Constructions Pty Limited was convicted on 6 October 2020.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order J & CG Constructions Pty Limited to pay a fine of $180,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order J & CG Constructions Pty Limited to pay the prosecutor’s costs agreed in the amount of $48,000.

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 – capacity to pay appropriate penalty
COSTS – prosecution costs
OTHER – fall from height over unprotected edge – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection – absence of exclusion zones to prevent or restrict access to risk areas – failure to ensure scaffolds, catch decks and adequate handrails were installed before incident – failure to use individual fall arrest systems prior to the incident

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2011, cll 78, 79, 300

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover…

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: [2020] NSWDC 614
Decision Date: 16 October 2020

CaseChat Overview and Summary

The case before the court was an action by SafeWork NSW against J and CG Constructions Pty Limited, arising from an incident where a worker suffered injuries after falling from a height over an unprotected edge. The incident highlighted significant lapses in the company's work health and safety management systems. The primary issue was whether J and CG Constructions Pty Limited had adequately fulfilled their duty under work health and safety legislation by mitigating the risk of serious injury or death to employees. The company was alleged to have failed to implement necessary safety measures such as scaffolds, catch decks, handrails, and exclusion zones, despite being aware of the risks involved.

The court needed to determine the objective seriousness of the offence, the presence of any mitigating or aggravating factors, and the appropriate penalty to ensure both general and specific deterrence, considering the company's capacity to pay. The court also had to address whether the fine should be reduced due to the company's plea of guilty and assess the company's financial standing to determine the overall penalty and costs to be imposed. Additionally, the court was required to rule on the allocation of the fine payment towards prosecution costs.

After examining the evidence, the court found J and CG Constructions Pty Limited guilty of the charges. The court determined that the appropriate penalty was a fine of $240,000, but reduced it by 25% to account for the plea of guilty, resulting in a final fine of $180,000. The court also ordered that half of this fine be paid to the prosecutor, aligning with the statutory requirements. Furthermore, the company was ordered to pay prosecution costs amounting to $48,000. The court's decision aimed to uphold the principles of deterrence and accountability in workplace safety management.

Orders

Orders of the court

(1) J & CG Constructions Pty Limited was convicted on 6 October 2020.

(2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order J & CG Constructions Pty Limited to pay a fine of $180,000.

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

(5) Order J & CG Constructions Pty Limited to pay the prosecutor’s costs agreed in the amount of $48,000.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614
Hearing dates:	6 October 2020
Date of orders:	16 October 2020
Decision date:	16 October 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) J & CG Constructions Pty Limited was convicted on 6 October 2020. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order J & CG Constructions Pty Limited to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order J & CG Constructions Pty Limited to pay the prosecutor’s costs agreed in the amount of $48,000.
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 – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall from height over unprotected edge – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection – absence of exclusion zones to prevent or restrict access to risk areas – failure to ensure scaffolds, catch decks and adequate handrails were installed before incident – failure to use individual fall arrest systems prior to the incident
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2011, cll 78, 79, 300
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover…