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
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
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…
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- Case
- [2020] NSWDC 614
- Decision Date
CaseChat Overview and Summary
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
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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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