SafeWork NSW v N Moit & Sons (NSW) Pty Ltd - [2023] NSWDC 205

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205
Hearing dates: 17 May 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect the plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $75,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition
COSTS – prosecutor’s costs

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Muldrock v The Queen (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:
Australian Standard AS/NZS Selection, use and maintenance of respiratory protective equipment 1715:2009
Respirable Crystalline Silica and Occupational Health Issues
The Control of Workplace Hazardous Substances Code of Practice
Workplace Exposure Standards for Airborne Contaminants

Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
N Moit & Sons (NSW) Pty Ltd (Defendant)
Representation:
Counsel:
Mr A Mykkeltvedt (for the Prosecutor)
Mr B Rauf (for the Defendant)
Solicitors:
Department of Customer Service (for the Prosecutor)
Source Legal (for the Defendant)

File Number(s): 2022/229597
Publication restriction: Nil

Judgment

Between 28…

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: [2023] NSWDC 205
Decision Date: 16 June 2023

CaseChat Overview and Summary

SafeWork NSW prosecuted N Moit & Sons (NSW) Pty Ltd for breaches of work health and safety laws. The case was heard in the Local Court of New South Wales. The central issue was whether the company had fulfilled its duty under work health and safety regulations, specifically regarding the risk of death or serious injury. The prosecution argued that the company had failed to meet its obligations, while the company claimed that it had taken all reasonable steps to ensure safety.

The court had to determine the appropriate sentence, considering the objective seriousness of the offence, mitigating and aggravating factors, and the defendant's plea of guilty. The objective seriousness was evaluated based on the potential harm, the degree of culpability, and the need for deterrence. The court noted that the company had shown remorse and contrition, which were mitigating factors. However, the potential for serious injury and the failure to prevent such incidents were aggravating factors. The company's plea of guilty resulted in a 25% discount on the fine. The court ordered a fine of $75,000, reduced from $100,000 due to the plea discount. Additionally, the company was required to pay 50% of the fine to the prosecutor and the prosecutor’s costs as agreed or assessed.

In conclusion, the court found the company guilty and imposed a fine of $75,000, with additional payments to the prosecutor and the prosecutor’s costs. The sentence aimed to balance the need for general and specific deterrence with the mitigating factor of the company's guilty plea and expressed remorse.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $75,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is 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 N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205
Hearing dates:	17 May 2023
Date of orders:	16 June 2023
Decision date:	16 June 2023
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $75,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.
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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Work Health and Safety Regulation 2017 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited:	Australian Standard AS/NZS Selection, use and maintenance of respiratory protective equipment 1715:2009 Respirable Crystalline Silica and Occupational Health Issues The Control of Workplace Hazardous Substances Code of Practice Workplace Exposure Standards for Airborne Contaminants
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) N Moit & Sons (NSW) Pty Ltd (Defendant)
Representation:	Counsel: Mr A Mykkeltvedt (for the Prosecutor) Mr B Rauf (for the Defendant) Solicitors: Department of Customer Service (for the Prosecutor) Source Legal (for the Defendant)
File Number(s):	2022/229597
Publication restriction:	Nil