SafeWork NSW v Keks Projects Pty Ltd - [2024] NSWDC 141

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141
Hearing dates: 18 April 2024
Date of orders: 1 May 2024
Decision date: 01 May 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Keks Projects Pty Ltd is convicted.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Keks Projects Pty Ltd 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 Keks Projects Pty Ltd 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
COSTS – prosecution costs
OTHER – fall into an excavation – unsecured temporary fencing – fence gave way – failure to prevent access to exclusion zone – failure to install fence capable of withstanding force of person leaning or falling

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2017 (NSW) cll 78, 305

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
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
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
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
SafeWork NSW Code of Practice – Excavation Work, January 2020
SafeWork NSW Code of Practice – Managing the risk of falls at workplaces, August 2019
SafeWork NSW Code of Practice – Managing the risk of falls in housing construction, August 2019

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Keks Projects Pty Ltd (Defendant)
Representation:
Counsel:
A Mykkeltvedt (Prosecutor)
M Whitbread (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Morris Legal (Defendant)

File Number(s): 2022/281976

Judgment

On 23 September 2020 while working as a contractor on a building site Mr Iziah Cleal fell approximately 4.5 metres through a temporary fence into an excavation. He sustained a fractured ankle and several pelvic fractures.
Keks Projects Pty…

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 141
Decision Date: 01 May 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Keks Projects Pty Ltd in the District Court of New South Wales, alleging breaches of work health and safety legislation. The charges stemmed from an incident where a worker fell into an excavation, leading to serious injury. The prosecution argued that the company failed to prevent access to the exclusion zone and did not install a fence capable of withstanding the force of a person leaning or falling. The company pleaded guilty to the charges, leading to a consideration of sentencing and costs.

The court had to determine the appropriate penalty, taking into account the objective seriousness of the offence, mitigating and aggravating factors, the plea of guilty, and the need for general and specific deterrence. The court also needed to consider the company’s capacity to pay a penalty. In assessing the objective seriousness, the court focused on the potential for death or serious injury, the breach of duty, and the failure to adhere to safety standards. Mitigating factors included the early plea of guilty and the company’s cooperation with the prosecution. The absence of prior convictions was also considered.

The court concluded that the appropriate fine was $240,000, which was reduced by 25% due to the early plea of guilty, resulting in a fine of $180,000. The court further ordered that 50% of the fine be paid to the prosecutor and that the company pay the prosecutor’s costs. This decision highlighted the importance of workplace safety and the consequences of failing to comply with regulatory requirements. The court emphasised the need for companies to take proactive measures to prevent accidents and ensure the safety of workers.

Orders

Orders of the court

(1) Keks Projects Pty Ltd is convicted.

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

(3) Order Keks Projects Pty Ltd 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 Keks Projects Pty Ltd to pay the prosecutor’s costs.

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 Keks Projects Pty Ltd [2024] NSWDC 141
Hearing dates:	18 April 2024
Date of orders:	1 May 2024
Decision date:	01 May 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Keks Projects Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Keks Projects Pty Ltd 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 Keks Projects Pty Ltd 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 COSTS – prosecution costs OTHER – fall into an excavation – unsecured temporary fencing – fence gave way – failure to prevent access to exclusion zone – failure to install fence capable of withstanding force of person leaning or falling
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW) cll 78, 305
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 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 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 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	SafeWork NSW Code of Practice – Excavation Work, January 2020 SafeWork NSW Code of Practice – Managing the risk of falls at workplaces, August 2019 SafeWork NSW Code of Practice – Managing the risk of falls in housing construction, August 2019
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Keks Projects Pty Ltd (Defendant)
Representation:	Counsel: A Mykkeltvedt (Prosecutor) M Whitbread (Defendant) Solicitors: Department of Customer Service (Prosecutor) Morris Legal (Defendant)
File Number(s):	2022/281976