SafeWork NSW v Miller Logistics Pty Ltd - [2024] NSWDC 119

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Miller Logistics Pty Ltd [2024] NSWDC 119
Hearing dates: 18 April 2024
Date of orders: 18 April 2024
Decision date: 18 April 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Miller Logistics Pty Ltd is convicted.
(2)   Order Miller Logistics Pty Ltd to pay a fine of $450,000.
(3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(4)   Order Miller Logistics Pty Ltd to pay the prosecutor’s costs.
(5)   Direct the solicitor for the prosecutor to send a copy of this judgment to the liquidator of Miller Logistics Pty Ltd.

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
COSTS – prosecution costs
OTHER – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A,
Fines Act 1996 (NSW), s122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

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
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Miller Logistics Pty Ltd (Defendant)
Representation:
Counsel:
M Scott (Prosecutor)
Solicitors:
Department of Customer Service (Prosecutor)

File Number(s): 2022/144479

Judgment

On 4 November 2020 Mr Christopher Herden, a truck driver employed by Zentry Pty Ltd was working at a transport depot operated by Miller Logistics Pty Ltd (Miller) in Tamworth (the site). Miller traded as Doble Express Transport. Mr Herden was working on foot assisting the driver of a B-Double trailer which was located in the loading/unloading area at the site. Mr Herden was struck by a forklift driven by another worker. Mr Herden suffered serious injuries.
On 8 March 2024 I found Miller guilty of an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (WHS…

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: [2024] NSWDC 119
Decision Date: 18 April 2024

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Miller Logistics Pty Ltd in the Local Court of New South Wales, concerning a workplace incident where a forklift struck a pedestrian worker at the company's depot. The dispute centred on whether Miller Logistics Pty Ltd had breached its duty under work health and safety laws by failing to implement adequate traffic management measures, leading to the risk of serious injury or death. The court had to determine the appropriate penalty for the company, taking into account various sentencing factors such as the objective seriousness of the offence, mitigating and aggravating factors, the company's plea of guilty, and the need for general and specific deterrence.

The court considered the gravity of the incident, which resulted in a significant risk of death or serious injury, and the systemic failure of the company to enforce proper traffic management within the workplace. The company's plea of guilty was acknowledged as a mitigating factor, while the absence of a separation between pedestrian and forklift traffic was highlighted as an aggravating factor. The court also noted the company's capacity to pay an appropriate penalty. In assessing the overall objective seriousness of the offence, the court emphasised the need to deter not only the company but also other entities in similar circumstances from committing such breaches in the future.

Following its analysis, the court convicted Miller Logistics Pty Ltd and imposed a fine of $450,000, with 50% of the fine to be paid to the prosecutor. The court also ordered the company to pay the prosecutor's costs and directed the prosecutor's solicitor to send a copy of the judgment to the liquidator of Miller Logistics Pty Ltd. This decision underscores the importance of stringent workplace safety measures and the significant consequences for non-compliance with work health and safety laws.

Orders

Orders of the court

(1) Miller Logistics Pty Ltd is convicted.

(2) Order Miller Logistics Pty Ltd to pay a fine of $450,000.

(3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(4) Order Miller Logistics Pty Ltd to pay the prosecutor’s costs.

(5) Direct the solicitor for the prosecutor to send a copy of this judgment to the liquidator of Miller Logistics Pty Ltd.

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 Miller Logistics Pty Ltd [2024] NSWDC 119
Hearing dates:	18 April 2024
Date of orders:	18 April 2024
Decision date:	18 April 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Miller Logistics Pty Ltd is convicted. (2) Order Miller Logistics Pty Ltd to pay a fine of $450,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (4) Order Miller Logistics Pty Ltd to pay the prosecutor’s costs. (5) Direct the solicitor for the prosecutor to send a copy of this judgment to the liquidator of Miller Logistics Pty Ltd.
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 COSTS – prosecution costs OTHER – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, Fines Act 1996 (NSW), s122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
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 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Miller Logistics Pty Ltd (Defendant)
Representation:	Counsel: M Scott (Prosecutor) Solicitors: Department of Customer Service (Prosecutor)
File Number(s):	2022/144479