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SafeWork NSW v Murray Constructions Pty Ltd

SafeWork NSW v Murray Constructions Pty Ltd

Case [2023] NSWDC 343 31 August 2023

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Hearing dates: 22 August 2023
Date of orders: 31 August 2023
Decision date: 31 August 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Murray Constructions Pty Ltd was convicted on 2 August 2023.
(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Murray Constructions Pty Ltd to pay a fine of $450,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order Murray Constructions Pty Ltd to pay the prosecutor’s costs.

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 – victim impact statements
COSTS – prosecution costs
OTHER – excavator bucket fell from trailer during unloading – worker fatally crushed and another injured – failure to require that loads be supported by or connected to plant prior to load restraint devices being released – failure to prohibit unlicensed persons from performing dogging duties during unloading operations

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43
Work Health & Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Sch 3, Sch 4

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Brzozowski v R [2023] NSWCCA 129
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
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
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 BSA Ltd (No. 2) [2023] NSWDC 73
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
Safety Assist Publication, “Loading, Unloading, Exclusion Zones”, November 2010
SafeWork Australia Code of Practice, “Managing Risks of Plant in the Workplace”, August 2019
WorkCover NSW Code of Practice, “Moving Plant on Construction Sites”, 2004
WorkCover NSW Fact Sheet, “Safe Unloading and Loading of Trucks for Bulky Goods Retailers”, September 2014

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Murray Constructions Pty Ltd (Defendant)
Representation:
Counsel:
P J Gow (Prosecutor)

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.

Continue reading SafeWork NSW v Murray Constructions Pty Ltd

Details

AGLC: SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Case: [2023] NSWDC 343
Decision Date: 31 August 2023

CaseChat Overview and Summary

In the case of SafeWork NSW v Murray Constructions Pty Ltd, the issue before the court was the prosecution of the company for its failure to ensure the health and safety of its employees, resulting in a fatal incident. During the unloading of an excavator bucket from a trailer, it fell, fatally crushing one worker and injuring another. The prosecution argued that the company breached its duty under the work health and safety laws by not requiring that loads be supported or connected to plant equipment before releasing load restraint devices, and by allowing unlicensed individuals to perform dogging duties during unloading operations.

The primary legal issues revolved around the objective seriousness of the offence, the presence of mitigating and aggravating factors, and the appropriate penalty to be imposed. Given Murray Constructions’ early plea of guilty, the court acknowledged a reduction in the fine. The court considered factors such as the potential for general and specific deterrence, the company’s capacity to pay, and the impact on the victims' families. Ultimately, the court found the offence to be of significant seriousness due to the loss of life and severe injury.

Murray Constructions was convicted and fined $600,000, reduced by 25% due to the guilty plea. The court ordered a fine of $450,000 and mandated that 50% of this fine be paid to the prosecutor. Additionally, the company was directed to cover the prosecution's costs. These orders reflect the court's intention to impose a penalty that serves both as a deterrent and a form of retribution, while also considering the company's financial ability to pay and the impact on the victims' families.

Orders

Orders of the court

(1) Murray Constructions Pty Ltd was convicted on 2 August 2023.

(2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Murray Constructions Pty Ltd to pay a fine of $450,000.

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

(5) Order Murray Constructions Pty Ltd to pay the prosecutor’s costs.

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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Citations

AGLC Citation

SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343

Most Recent Citation

SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417

Cases citing this decision · 1 of 1 shown

SafeWork NSW v BSA Limited (No. 3)
[2023] NSWDC 417 Para 40

…In the course of submissions, I was referred to my recent previous judgment in SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343. The issue of causation was not fully argued before me in that case. I have come to the view that I did not apply the correct test in relation to whether or not the breach of t…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Brzozowski v R
[2023] NSWCCA 129 Para 100

…The Court of Criminal Appeal has recently considered the concept of “remorse” as defined in the legislation in Brzozowski v R [2023] NSWCCA 129. At [58] the court said:…
SafeWork NSW v BSA Limited (No.2)
[2023] NSWDC 73 Para 92

…ng such as par 16 in the present Amended Summons “does not and cannot elevate it to be an element of the offence”: SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73 at [368].…
Unity Pty Limited v SafeWork NSW
[2018] NSWCCA 266 Para 103

…In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:…
Bulga Underground Operations v Nash
[2017] NSWCCA 96 Para 80

…ard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:…
Bulga Underground Operations Pty Ltd v Nash
[2016] NSWCCA 37 Para 85

…safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].…
Mahdi Jahandideh v The Queen
[2014] NSWCCA 178 Para 102

…exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.…
Muldrock v The Queen
[2011] HCA 39 Para 76

…In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:…
BW v R
[2011] NSWCCA 176 Para 75

…ive seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 77

…ng circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].…
R v McNaughton
[2006] NSWCCA 242 Para 74

…sed to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].…
Baumer v R
[1988] HCA 67 Para 75

…The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of t…
Veen v The Queen (No 2)
[1988] HCA 14 Para 74

…hat a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the cri…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E,... 11 mentions (from Para 73)
Work Health and Safety Act 2011 (ACT)
19, 3, 32, 43 5 mentions (from Para 2)
Fines Act 1996 (NSW)
122, 6 3 mentions (from Para 102)

Medium Neutral Citation:	SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Hearing dates:	22 August 2023
Date of orders:	31 August 2023
Decision date:	31 August 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Murray Constructions Pty Ltd was convicted on 2 August 2023. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Murray Constructions Pty Ltd to pay a fine of $450,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Murray Constructions Pty Ltd to pay the prosecutor’s costs.
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 – victim impact statements COSTS – prosecution costs OTHER – excavator bucket fell from trailer during unloading – worker fatally crushed and another injured – failure to require that loads be supported by or connected to plant prior to load restraint devices being released – failure to prohibit unlicensed persons from performing dogging duties during unloading operations
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43 Work Health & Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Sch 3, Sch 4
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Brzozowski v R [2023] NSWCCA 129 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 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 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 BSA Ltd (No. 2) [2023] NSWDC 73 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Safety Assist Publication, “Loading, Unloading, Exclusion Zones”, November 2010 SafeWork Australia Code of Practice, “Managing Risks of Plant in the Workplace”, August 2019 WorkCover NSW Code of Practice, “Moving Plant on Construction Sites”, 2004 WorkCover NSW Fact Sheet, “Safe Unloading and Loading of Trucks for Bulky Goods Retailers”, September 2014
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Murray Constructions Pty Ltd (Defendant)
Representation:	Counsel: P J Gow (Prosecutor)