SafeWork NSW v N Moit & Sons (NSW) Pty Ltd

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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

  1. Between 28…

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Details
Case
[2023] NSWDC 205
Decision Date

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

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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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