SafeWork NSW v Millwell Cush Pty Ltd - [2019] NSWDC 302

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Millwell Cush Pty Ltd [2019] NSWDC 302
Hearing dates: 16 May 2019
Date of orders: 08 July 2019
Decision date: 08 July 2019
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1)   The offender is convicted.
(2)   The appropriate fine is $150,000 but that will be reduced by 25% to reflect a plea of guilty.
(3)   I impose a fine of $112,500 in total.
(4) I order pursuant to s122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.
(5)   I order the offender to pay the prosecutor’s costs as agreed or assessed.

Catchwords: CRIMINAL LAW – prosecution – work, health & 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
COSTS – prosecution costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Work Health and Safety Act 2011
Cases Cited: Baumer v R (1998) 166 CLR 51
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219
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 McNaughton (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] MSWSC 432
Veen v R (No. 2) (1088) 164 CLR 465
WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIR Comm 363
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Millwell Cush Pty Ltd (Offender)
Representation:
Counsel:
Ms N Evans appeared for the Prosecutor
Mr R Reitano appeared for the Offender
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Leigh Virtue & Associates (Offender)

File Number(s): 2017/386273
Publication restriction: None

Judgment

Millwell Cush Pty Ltd (‘the offender’) pleaded guilty to an offence contrary to s32 of the Work Health and Safety Act 2011 ‘(the Act’), by failing to comply with its health and safety duty imposed upon him by s19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the offender’s business or undertaking and in doing so exposed an individual to a risk of death or serious injury.

This offence, in the case of a corporation, carries the maximum penalty of $1,500,000.

The offence was committed at the offender’s premises in Wesdale on 16 December 2016. At that time and place there were workers working in the offender’s business who were exposed to a risk to their health and safety. One of the workers exposed to the risk was Douglas McGuffog (‘McGuffog’)…

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: [2019] NSWDC 302
Decision Date: 08 July 2019

CaseChat Overview and Summary

SafeWork NSW prosecuted Millwell Cush Pty Ltd for breaches of workplace health and safety regulations. The case arose from an incident where a worker sustained serious injuries, leading to allegations that the company failed in its duty to ensure the health and safety of its employees. The matter was heard in the Local Court of New South Wales. The primary legal issue was whether Millwell Cush Pty Ltd had contravened specific provisions of the Occupational Health and Safety Act 2000, and if so, what the appropriate penalty should be.

The court examined the nature and extent of the risk posed by the company's actions, the steps taken to mitigate that risk, and whether the company had shown any negligence or recklessness. It considered the plea of guilty as a mitigating factor but also acknowledged aggravating factors such as the severity of the injury and the clear breach of safety protocols. The court assessed the objective seriousness of the offence, taking into account the need for general and specific deterrence, as well as the financial capacity of the offender.

In determining the penalty, the court applied a 25% reduction to the base fine due to the plea of guilty, resulting in a total fine of $112,500. Additionally, the court ordered that half of this amount be paid to SafeWork NSW, and that the offender cover the prosecution's costs as agreed or assessed. The decision underscores the importance of workplace health and safety and the court's commitment to imposing penalties that reflect the gravity of the offence while also considering mitigating factors.

Orders

Orders of the court

(1) The offender is convicted.

(2) The appropriate fine is $150,000 but that will be reduced by 25% to reflect a plea of guilty.

(3) I impose a fine of $112,500 in total.

(4) I order pursuant to s122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.

(5) I order the offender to pay the prosecutor’s costs as agreed or assessed.

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 Millwell Cush Pty Ltd [2019] NSWDC 302
Hearing dates:	16 May 2019
Date of orders:	08 July 2019
Decision date:	08 July 2019
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The offender is convicted. (2) The appropriate fine is $150,000 but that will be reduced by 25% to reflect a plea of guilty. (3) I impose a fine of $112,500 in total. (4) I order pursuant to s122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5) I order the offender to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work, health & 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 COSTS – prosecution costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011
Cases Cited:	Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219 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 McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] MSWSC 432 Veen v R (No. 2) (1088) 164 CLR 465 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIR Comm 363
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Millwell Cush Pty Ltd (Offender)
Representation:	Counsel: Ms N Evans appeared for the Prosecutor Mr R Reitano appeared for the Offender Solicitors: SafeWork NSW Legal Services (Prosecutor) Leigh Virtue & Associates (Offender)
File Number(s):	2017/386273
Publication restriction:	None