SafeWork NSW v Karl O'Sullivan - [2024] NSWDC 142

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Karl O’Sullivan [2024] NSWDC 142
Hearing dates: 17 April 2024
Date of orders: 1 May 2024
Decision date: 01 May 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Karl O’Sullivan was convicted on 17 April 2024.
(2)   The appropriate fine is $10,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Karl O’Sullivan to pay a fine of $7,500.
(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 Karl O’Sullivan to pay the prosecutor’s costs.

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 – victim impact statement – totality
COSTS – prosecution costs
OTHER – forklift crushed truck driver pedestrian at worksite – forklift parked on a slope – forklift rolled down slope – forklift handbrake not applied – forklift engine not turned off – forklift steer wheels left on an angle – forklift wheels not chocked – forklift tynes not lowered – fatal injuries

Legislation Cited:
Crimes Act 1900 (NSW) ss 18, 52A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 28, 32, 171

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
Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Hesketh v R [2021] NSWCCA; (2021) 106 NSWLR 200
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
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
Pearce v The Queen (1998) 194 CLR 610
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
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
Australian Standard AS2359.2 Powered Industrial Trucks, 2013
Safe Work Australia General Guide for Industrial Lift Trucks, July 2014
Safe Work Australia General Guide for Workplace Traffic Management, July 2014
SafeWork NSW Safety Alert, Uncontrolled Movement of Vehicles, 5 December…

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: [2024] NSWDC 142
Decision Date: 01 May 2024

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Karl O'Sullivan in the Local Court of New South Wales. The case arose from an incident at a worksite where a forklift, operated by Mr O'Sullivan, rolled down a slope, crushing a truck driver and a pedestrian. The incident resulted in fatal injuries to both individuals. The charge was brought under the Work Health and Safety Act 2011 (NSW), alleging that Mr O'Sullivan failed to ensure the safety of workers by not properly securing the forklift, leading to the tragic outcome.

The court was required to determine whether Mr O'Sullivan had breached his duty under the Act, specifically whether his actions or inactions had created a risk of death or serious injury. The key issues included the assessment of the objective seriousness of the incident, the identification of mitigating and aggravating factors, and the calculation of an appropriate penalty considering the plea of guilty and the capacity of the defendant to pay. Additionally, the court had to consider the impact on the victims' families and the broader objectives of deterrence and punishment.

The court found Mr O'Sullivan guilty and imposed a penalty that reflected both the gravity of the incident and the mitigating factor of the early plea of guilty. The fine was set at $10,000, but a 25% reduction was applied, resulting in a final penalty of $7,500. Half of this amount was to be paid to the prosecutor as per the statutory requirement. The court also ordered Mr O'Sullivan to cover the prosecution's costs. The decision emphasised the importance of workplace safety and the need for strict adherence to safety protocols to prevent such tragedies.

The final orders included the conviction of Mr O'Sullivan, a fine of $7,500, a requirement that 50% of the fine be paid to the prosecutor, and an order for Mr O'Sullivan to pay the prosecution costs. These orders were designed to uphold the principles of justice and deterrence while considering the specific circumstances of the case.

Orders

Orders of the court

(1) Karl O’Sullivan was convicted on 17 April 2024.

(2) The appropriate fine is $10,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Karl O’Sullivan to pay a fine of $7,500.

(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 Karl O’Sullivan to pay the prosecutor’s costs.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	SafeWork NSW v Karl O’Sullivan [2024] NSWDC 142
Hearing dates:	17 April 2024
Date of orders:	1 May 2024
Decision date:	01 May 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Karl O’Sullivan was convicted on 17 April 2024. (2) The appropriate fine is $10,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Karl O’Sullivan to pay a fine of $7,500. (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 Karl O’Sullivan to pay the prosecutor’s costs.
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 – victim impact statement – totality COSTS – prosecution costs OTHER – forklift crushed truck driver pedestrian at worksite – forklift parked on a slope – forklift rolled down slope – forklift handbrake not applied – forklift engine not turned off – forklift steer wheels left on an angle – forklift wheels not chocked – forklift tynes not lowered – fatal injuries
Legislation Cited:	Crimes Act 1900 (NSW) ss 18, 52A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 28, 32, 171
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 Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Hesketh v R [2021] NSWCCA; (2021) 106 NSWLR 200 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 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 Pearce v The Queen (1998) 194 CLR 610 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 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian Standard AS2359.2 Powered Industrial Trucks, 2013 Safe Work Australia General Guide for Industrial Lift Trucks, July 2014 Safe Work Australia General Guide for Workplace Traffic Management, July 2014 SafeWork NSW Safety Alert, Uncontrolled Movement of Vehicles, 5 December…