District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 Hearing dates: 18 July 2023 Date of orders: 26 July 2023 Decision date: 26 July 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Maluko Pty Ltd is convicted.
(2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Maluko Pty Ltd to pay a fine of $375,000.
(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 Maluko Pty Ltd to pay the prosecutor’s costs agreed in the amount of $44,000.
(6) Exhibits to be returned.
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 – maximum penalty increased during period of continuing offence – whether new maximum penalty applies
COSTS – prosecution costs
OTHER – worker fatally crushed by damaged gate – failure to direct workers not to manually operate gate until repaired or replaced – failure to direct that gate remain open until repaired or replaced – failure to develop and implement a provisional safe system of work for using damaged gate – failure to develop and implement Safe Work Method Statement or safe work procedure for manual operation of gate – failure to train and instruct workers in safe work systems and procedures – failure to raise safety concerns with site’s Owners Corporation or strata manager
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 21A, 22
Crimes Act 1914 (Cth), s 86(1)E, 86A
Fines Act 1996 (NSW), ss 6, 122
Interpretation Act 1987 (NSW), s 55
Protection of the Environment Operations Act 1997 (NSW)
Strata Schemes Management Act 2015 (NSW), s 106
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 242B
Work Health and Safety Amendment (Review) Act 2020 (NSW), Sch 1 cl 19, Sch 2 cl 18, ss 2, 19
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
Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209
Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Annecchini (BC9601668, Court of Criminal Appeal (NSW), Gleeson CJ, Allen and James JJ, 24 April…
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- AGLC
- SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
- Case
- [2023] NSWDC 274
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the respondent's failures to develop and implement appropriate safety protocols, including the operation of a damaged gate, amounted to a breach of their duty of care under the statutory framework. Specifically, the court had to consider whether the respondent's actions demonstrated a reckless disregard for the risk of death or serious injury to employees. The respondent pleaded guilty to the charges, leading to a consideration of both aggravating and mitigating factors in sentencing.
The court found that the respondent’s breaches were significant, resulting in a fatal outcome. The objective seriousness of the breach was high, but the court reduced the penalty by 25% due to the early guilty plea. The court set a fine of $500,000 but, after the reduction, ordered the respondent to pay $375,000. Additionally, the court mandated that 50% of the fine be paid to the prosecutor and ordered the respondent to cover the agreed prosecution costs of $44,000. The court also ordered the return of the exhibits used in the proceedings.
Orders
Orders of the court
(1) Maluko Pty Ltd is convicted.
(2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Maluko Pty Ltd to pay a fine of $375,000.
(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 Maluko Pty Ltd to pay the prosecutor’s costs agreed in the amount of $44,000.
(6) Exhibits to be returned.
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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