SafeWork NSW v Lewin Roofing Pty Ltd - [2021] NSWDC 707

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Lewin Roofing Pty Ltd [2021] NSWDC 707
Hearing dates: 8 November 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $180,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $135,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.

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 – previous convictions - appropriate sentence – strong subjective case – capacity to pay – Fines Act 1996 (NSW)
OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Regulation 2011 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
Jahandideh v R [2014] NSWCCA 178
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Lewin Roofing Pty Ltd (Defendant)
Representation:
Counsel:
Mr N Read (for the Prosecutor)
Mr D Nagle (for the Defendant)
Solicitors:
Mr J O’Connell, Department of Customer Service (for the Prosecutor)
Mr M Bryan, Morrissey Law + Advisory (for the Defendants)

File Number(s): 2020/349382

Judgment

On 9 August 2021, Lewin Roofing Pty Ltd…

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: [2021] NSWDC 707
Decision Date: 21 December 2021

CaseChat Overview and Summary

SafeWork NSW prosecuted Lewin Roofing Pty Ltd for an offence under section 19(1) of the Work Health and Safety Act 2011 (NSW). The prosecution alleged that Lewin Roofing failed to ensure that its workers were not exposed to risks of death or serious injury. The dispute was heard in the Local Court of New South Wales. The court was required to determine whether the prosecution had proved its case, the objective seriousness of the offence, and the appropriate penalty, including any mitigating or aggravating factors.

The primary legal issue was whether Lewin Roofing had breached its duty under the Work Health and Safety Act. The court considered the evidence presented and the admissions made by the defendant. The court found that the prosecution had established its case, and the defendant pleaded guilty. In sentencing, the court assessed the objective seriousness of the offence, considering the potential harm, the nature of the breach, and the company's capacity to pay. The court also considered mitigating factors such as the plea of guilty and the absence of previous convictions. Aggravating factors included the significant risk to workers and the serious nature of the breach. The court determined that a strong subjective case existed for a substantial penalty to ensure general and specific deterrence.

The court concluded that an appropriate fine was $180,000.00, reduced by 25% for the plea of guilty, resulting in a fine of $135,000.00. The court ordered that 50% of the fine be paid to the prosecutor and that the defendant pay the prosecutor's costs of $25,000.00. This decision ensures that the company is held accountable for its failure to protect its workers and reinforces the importance of compliance with work health and safety laws.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $180,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $135,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.

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 Lewin Roofing Pty Ltd [2021] NSWDC 707
Hearing dates:	8 November 2021
Date of orders:	21 December 2021
Decision date:	21 December 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $180,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $135,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.
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 – previous convictions - appropriate sentence – strong subjective case – capacity to pay – Fines Act 1996 (NSW) OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Jahandideh v R [2014] NSWCCA 178 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Lewin Roofing Pty Ltd (Defendant)
Representation:	Counsel: Mr N Read (for the Prosecutor) Mr D Nagle (for the Defendant) Solicitors: Mr J O’Connell, Department of Customer Service (for the Prosecutor) Mr M Bryan, Morrissey Law + Advisory (for the Defendants)
File Number(s):	2020/349382