SafeWork NSW v Mennen Constructions Pty Ltd

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District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Mennen Constructions Pty Ltd [2024] NSWDC 446
Hearing dates: 02 September 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

1   Mennen Constructions Pty Ltd is convicted.

2   I impose a fine of $180,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
Mennen Constructions Pty Ltd (Offender)
Representation:

Counsel:
J Simpson (Prosecutor)
E Aitken (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
The Law Man (Offender)
File Number(s): 2023/255565
Publication restriction: None

JUDGMENT

  1. Mennen Constructions Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Hui Li to a risk of death or serious injury.

  2. The maximum penalty for the offence is a fine of 17,315 penalty units ($1,782,579).

Facts

  1. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Background

  1. The offender conducted a construction business performing residential and commercial renovations, and new builds.

  2. On or around 11 January 2021, the offender was engaged as the principal contractor for the construction of a new two-storey duplex at 51 Macquarie Street, Fairfield (the site).

  3. Hameed Mghder was the sole director of the offender. He was a person who made decisions that affected a whole or substantial part of the offender’s business including work health and safety policies. Mr Mghder was referred to as the builder and site manager at the site. He attended the site approximately three days a week, performed checks on work while on site and would discuss…

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Details
Case
[2024] NSWDC 446
Decision Date

CaseChat Overview and Summary

In SafeWork NSW v Mennen Constructions Pty Ltd, the dispute arose from an incident where a worker was injured, leading to a prosecution under the work health and safety legislation. The court was tasked with determining the employer's liability for failing to meet their duty to ensure the health and safety of employees, specifically in relation to the risk of serious injury or death. The legal issues included whether the employer had breached their statutory duty, and if so, what the appropriate penalty should be under the sentencing principles.

The court considered several factors in reaching its decision, including the objective seriousness of the offence, the need for deterrence, and the capacity of the company to pay a fine. Aggravating factors such as the nature of the injury and the breach of duty were weighed against mitigating factors, including the company's clean record, prospects of rehabilitation, expression of remorse, early guilty plea, and cooperation with law enforcement. The court found that the company was liable and imposed a fine of $180,000, ordered the payment of the prosecutor’s costs, and mandated that 50% of the fine be paid to the prosecutor under section 122(2) of the Fines Act 1996.

The court's reasoning led to the conviction of Mennen Constructions Pty Ltd, with a fine set at $180,000. This decision underscores the importance of employers adhering to work health and safety regulations to prevent serious harm to workers. The penalty imposed reflects both the severity of the breach and the mitigating circumstances presented by the company. The final orders mandated that the company pay the fine, the prosecutor's costs, and contribute to the prosecutor under the statutory provision, ensuring that the penalties serve both punitive and compensatory purposes.

Orders

Orders of the court

1 Mennen Constructions Pty Ltd is convicted.

2 I impose a fine of $180,000.

3 The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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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