SafeWork NSW v Meixing Jiang - [2018] NSWDC 400

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Meixing Jiang [2018] NSWDC 400
Hearing dates: 13 December 2018
Date of orders: 17 December 2018
Decision date: 17 December 2018
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
1 The offender is convicted.
2 Order the offender to pay a fine of $22,500.
3 Order that 50% of the fine is to be paid to the prosecutor.
4 Order the offender to pay the prosecutor’s costs agreed in the amount of $15,000.

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 – appropriate penalty

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs
OTHER – fall from height – need for risk assessment – need to communicate with workers whose language is not English
Legislation Cited: Crimes (Sentencing Procedure) Act 1999;
Fines Act 1996
Work Health and Safety Act 2011;
Work Health and Safety Regulation 2011 (NSW)
Cases Cited: Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Baumer v R (1998) 166 CLR 51;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
BW v R [2011] NSWCCA 176;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Jahandideh v R [2014] NSWCCA 178;
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
R v Borkowski (2009) 195 A Crim R 1;
R v McNaughton (2006) 66 NSWLR 566;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Veen v R (No. 2) (1998) 164 CLR;
Texts Cited: Construction work code of practice
Preventing Falls in Housing Construction Code of Practice
SafeWork NSW Hazardous Manual Tasks Code of Practice, 2011
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Meixing Jiang (Defendant)
Representation:
Counsel:
M Scott (Prosecutor)
W Chan (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Cathay Lawyers (Defendant)

File Number(s): 2018/191163 SafeWork NSW v Meixing Jiang

Judgment

Mr Meixing Jiang (Mr Jiang) has pleaded guilty to an offence that as a person who had a health and safety duty under s 27 of the Work Health and Safety Act 2011 (Act), to exercise due diligence to ensure that Yaofu Pty Limited (Yaofu) complied with its duty under s 19(1) of the Act, he failed to comply with that duty and the failure to comply with that duty exposed Mr Mohammad Rahmati and Mr Ashkan Tanha to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $300,000.

Background

The parties agreed on a Statement of Facts, which is summarised below.
Yaofu is…

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: [2018] NSWDC 400
Decision Date: 17 December 2018

CaseChat Overview and Summary

In SafeWork NSW v Meixing Jiang, SafeWork NSW prosecuted Jiang Meixing for alleged breaches of work health and safety laws that resulted in a worker falling from a height. The case was heard in the Local Court of New South Wales. Jiang was charged with contravening section 21 of the Work Health and Safety Act 2011 by failing to provide a safe work environment, which led to a worker suffering serious injuries. The court had to determine whether Jiang breached the duty of care required under the statute, and if so, what penalty would be appropriate considering the circumstances.

The court examined the legal issues surrounding Jiang’s obligations under the Act, particularly focusing on whether he had taken reasonable steps to ensure the safety of workers, including those whose first language was not English. The key issues included whether Jiang had conducted a risk assessment and communicated safety measures effectively. The court also had to consider mitigating and aggravating factors in determining the appropriate penalty. Given Jiang’s plea of guilty, the court needed to weigh this against the objective seriousness of the offence, as well as the need for general and specific deterrence.

Jiang was found guilty and sentenced accordingly. The court emphasised the gravity of the incident, which involved a significant risk of death or serious injury. The plea of guilty was considered a mitigating factor, but the court also noted the lack of remorse and contrition displayed by Jiang. The total penalty imposed included a fine of $22,500, half of which was to be paid to the prosecutor, and additional costs of $15,000 for the prosecution. The court stressed the importance of ensuring safety in the workplace, particularly when dealing with workers who may not fully understand safety instructions due to language barriers.

The final orders included Jiang's conviction, the imposition of the fine, and the requirement to pay the agreed costs to the prosecutor. This decision underscores the need for employers to adhere strictly to work health and safety regulations to prevent similar incidents in the future.

Orders

Orders of the court

1 The offender is convicted.

2 Order the offender to pay a fine of $22,500.

3 Order that 50% of the fine is to be paid to the prosecutor.

4 Order the offender to pay the prosecutor’s costs agreed in the amount of $15,000.

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 Meixing Jiang [2018] NSWDC 400
Hearing dates:	13 December 2018
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	1 The offender is convicted. 2 Order the offender to pay a fine of $22,500. 3 Order that 50% of the fine is to be paid to the prosecutor. 4 Order the offender to pay the prosecutor’s costs agreed in the amount of $15,000.
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 – appropriate penalty SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty COSTS – prosecution costs OTHER – fall from height – need for risk assessment – need to communicate with workers whose language is not English
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999; Fines Act 1996 Work Health and Safety Act 2011; Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 Baumer v R (1998) 166 CLR 51; Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37; BW v R [2011] NSWCCA 176; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Jahandideh v R [2014] NSWCCA 178; Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 R v Borkowski (2009) 195 A Crim R 1; R v McNaughton (2006) 66 NSWLR 566; R v Thomson & Houlton (2000) 49 NSWLR 383; R v Wilkinson (No. 5) [2009] NSWSC 432; Veen v R (No. 2) (1998) 164 CLR;
Texts Cited:	Construction work code of practice Preventing Falls in Housing Construction Code of Practice SafeWork NSW Hazardous Manual Tasks Code of Practice, 2011
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Meixing Jiang (Defendant)
Representation:	Counsel: M Scott (Prosecutor) W Chan (Defendant) Solicitors: SafeWork NSW (Prosecutor) Cathay Lawyers (Defendant)
File Number(s):	2018/191163 SafeWork NSW v Meixing Jiang