SafeWork NSW v Modco Homes Pty Ltd - [2024] NSWDC 565

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565
Hearing dates: 30 July 2024
Date of orders: 2 December 2024
Decision date: 02 December 2024
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   In each proceedings, Modco Homes Pty Ltd is convicted.
(2) The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty.
(3)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.
(4) The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.
(5)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.
(6) The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.
(7)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.
(8) The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty.
(9)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.
(10) The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.
(11)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.
(12) The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.
(13)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.
(14) In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.
(15) In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties
COSTS – prosecutor’s costs

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22,
Fines Act 1996 (NSW), s 122
Work Health and Safety Act 2011 (NSW), ss 3,…

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 565
Decision Date: 02 December 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Modco Homes Pty Ltd on several charges relating to breaches of work health and safety laws. The case was heard in the Local Court of New South Wales. The legal issues the court had to decide included the objective seriousness of the offences, the presence of any mitigating or aggravating factors, the appropriate discount for the defendant's guilty plea, and the calculation of the appropriate fines. The court also had to determine whether the defendant should be ordered to pay the prosecutor's costs.

The court found that the offences committed by Modco Homes were of significant seriousness due to the potential for death or serious injury. The court took into account the company's guilty pleas as a mitigating factor, reducing the fines by 25%. It considered the need for general and specific deterrence and the absence of remorse and contrition as aggravating factors. The fines were calculated based on the objective seriousness of each offence, the plea discount, and the need to ensure deterrence. The court ordered Modco Homes to pay the prosecutor's costs and 50% of the fines imposed to the prosecutor.

Orders

Orders of the court

(1) In each proceedings, Modco Homes Pty Ltd is convicted.

(2) The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(4) The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(5) Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(6) The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(7) Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(8) The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(9) Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(10) The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(11) Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(12) The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(13) Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(14) In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

(15) In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

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 Modco Homes Pty Ltd [2024] NSWDC 565
Hearing dates:	30 July 2024
Date of orders:	2 December 2024
Decision date:	02 December 2024
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) In each proceedings, Modco Homes Pty Ltd is convicted. (2) The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (4) The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (5) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (6) The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (7) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (8) The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (9) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (10) The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (11) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (12) The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (13) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (14) In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. (15) In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties COSTS – prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 3,…