SafeWork NSW v Mennen Constructions Pty Ltd

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

3. 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

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

5. 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).

6. 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…