SafeWork NSW v Page - [2024] NSWDC 133

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Page [2024] NSWDC 133
Hearing dates: 5 February 2024; 24 April 2024
Date of orders: 24 April 2024
Decision date: 24 April 2024
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   Glenn Page is convicted.
2   I impose a fine of $6,000.
3   The offender is to pay the prosecutor’s costs of the proceedings, agreed in the sum of $10,000.
4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine
SENTENCING PRINCIPLES - no record of previous convictions – good character - good prospects of rehabilitation - remorse - plea of guilty

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

Cases Cited:
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Jahandideh v R [2014] NSWCCA 178
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Glenn Page (Offender)
Representation:
Counsel:
D Nagle (Prosecutor)
I Todd (Offender)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Zahr Partners (Offender)

File Number(s): 2022/251236
Publication restriction: None

Judgment

Introduction

Glenn David Page (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act), in that he failed to comply with the health and safety duty he owed pursuant to s 28(b) of the Act and thereby exposed Mohammad Hoque to a risk of death or serious injury.
The maximum penalty for the offence is a fine of 1,730 penalty units ($176,460.00).

Facts

Background

Aland B & W Pty Ltd (Aland) was the principal contractor for the construction of a 5-storey residential development consisting of 135 units and two basement floors in three buildings at 361-363 Bernera Road, Edmondson Park, NSW (the site). The area between the three buildings was referred to as the “Laneway”. Aland commenced work at the site on about 17 July 2020. Alex Meoushy was engaged by Aland to supervise the construction work at the site, including the activities of contractors and sub-contractors.
On 22 July 2020 a 14-tonne luffing crane (the crane) was installed and commissioned on the site by Strictly Cranes Pty Ltd.
Alpha Crane Management Pty Ltd (Alpha) was engaged by Aland to provide cranage services at the site, including the provision of a crane driver and a dogman. The offender and Mohammad Zoulfikar were engaged by Alpha to work at the site. The offender held a high-risk work licence (HRWL) authorising him to act as a dogman.
On or about 20…

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 Page

Details

AGLC: SafeWork NSW v Page [2024] NSWDC 133
Case: [2024] NSWDC 133
Decision Date: 24 April 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Glenn Page for violations of work health and safety laws. The dispute arose from an incident where a worker was injured at a construction site managed by Page. The case was heard in the Local Court of New South Wales. The primary legal issue was whether Page, as a person undertaking a business, breached his duty to ensure the health and safety of workers, thereby causing the injury. The court had to consider if the injury posed a risk of death or serious injury and if Page's actions or omissions contributed to the risk.

The court found that Page had a duty under the relevant legislation to take all reasonably practicable steps to ensure the health and safety of his workers. The incident resulted in a significant injury to a worker, which the court deemed to pose a serious risk. The court considered various factors in determining the objective seriousness of the offence, including the potential for deterrence, and weighed aggravating and mitigating factors. Aggravating factors included the severity of the injury, while mitigating factors included Page's clean criminal record, good character, prospects of rehabilitation, remorse, and his early guilty plea.

In light of these considerations, the court imposed a fine of $6,000 on Page, ordered him to pay the prosecutor’s costs amounting to $10,000, and mandated that 50% of the fine be paid to the prosecutor. This decision reflects the court's attempt to balance the need for deterrence and the capacity of the offender to pay, while also considering the mitigating circumstances of the case.

Orders

Orders of the court

1 Glenn Page is convicted.

2 I impose a fine of $6,000.

3 The offender is to pay the prosecutor’s costs of the proceedings, agreed in the sum of $10,000.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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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Medium Neutral Citation:	SafeWork NSW v Page [2024] NSWDC 133
Hearing dates:	5 February 2024; 24 April 2024
Date of orders:	24 April 2024
Decision date:	24 April 2024
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Glenn Page is convicted. 2 I impose a fine of $6,000. 3 The offender is to pay the prosecutor’s costs of the proceedings, agreed in the sum of $10,000. 4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine SENTENCING PRINCIPLES - no record of previous convictions – good character - good prospects of rehabilitation - remorse - plea of guilty
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 (NSW)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Glenn Page (Offender)
Representation:	Counsel: D Nagle (Prosecutor) I Todd (Offender) Solicitors: Legal, Department of Customer Service (Prosecutor) Zahr Partners (Offender)
File Number(s):	2022/251236
Publication restriction:	None