SafeWork NSW v ProjectCorp Australia Pty Limited - [2017] NSWDC 169

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169
Hearing dates: 13 June 2017
Date of orders: 22 June 2017
Decision date: 22 June 2017
Jurisdiction: Criminal
Before: Judge D. Russell
Decision:
(1) The offender is convicted.
(2) I impose a fine of $90,000.
(3) I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(4) I order that the offender pay the prosecutor’s costs agreed in the sum of $15,000.

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 – parity principle – appropriate penalty

SENTENCING PRINCIPLES – parity – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs
OTHER – need for clear prohibition on operating machinery in an unsafe manner – need for supervision to ensure machinery is not operated in an unsafe manner
Legislation Cited: Work Health and Safety Act 2011;
Crimes (Sentencing Procedure) Act 1999;
Fines Act 1996
Cases Cited: Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
Jahandideh v R [2014] NSWCCA 178;
Green v R [2011] HCA 49;
DPP v Gregory [2011] VSCA 145;
Jimmy v R (2010) 77 NSWLR 540;
Markarian v R (2005) 228 CLR 357;
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316;
Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125;
Category: Sentence
Parties: SafeWork NSW (Prosecutor);
ProjectCorp Australia Pty Limited (Offender)
Representation:
Counsel:
Ms P. McEniery (Prosecutor);
Mr M. Cahill (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Holman Webb Lawyers (Offender)

File Number(s): DC 2014/249992

Judgment

ProjectCorp Australia Pty Limited (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Kieran Dodge to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.

Facts

The parties presented an Agreed Statement of Facts which can be summarised as follows.
The offender was a business that delivered specialised and complex construction works of ranging types and values,…

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: [2017] NSWDC 169
Decision Date: 22 June 2017

CaseChat Overview and Summary

SafeWork NSW brought proceedings against ProjectCorp Australia Pty Limited for breaches of work health and safety legislation, alleging that the company failed to ensure the safety of its workers, resulting in significant injury. The matter was heard in the Local Court of New South Wales. The key issue before the court was the determination of an appropriate penalty for the company's failure to meet its duty under the relevant legislation, specifically in relation to the risk of death or serious injury. The court also had to consider sentencing principles, including parity, the totality of the circumstances, and the company's remorse and contrition.

The court found that ProjectCorp Australia Pty Limited had breached its duty by failing to supervise its employees adequately, which led to an employee operating machinery in an unsafe manner, resulting in injury. The court considered several factors in determining the penalty, including the objective seriousness of the offence, the plea of guilty, the need for general and specific deterrence, and the principle of parity. The company's lack of remorse and contrition were also taken into account. Ultimately, the court decided that a substantial fine was necessary to uphold the deterrent effect of the legislation and to ensure that the company would take its health and safety responsibilities seriously in the future.

The court imposed a fine of $90,000, with 50% of the fine to be paid to the prosecutor. Additionally, the offender was ordered to pay the prosecutor's costs in the sum of $15,000. The court emphasised the importance of clear prohibitions on operating machinery in an unsafe manner and the need for supervision to prevent such unsafe practices. The court's decision underscores the significance of enforcing work health and safety regulations to protect workers and promote safer workplaces.

Orders

Orders of the court

(1) The offender is convicted.

(2) I impose a fine of $90,000.

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

(4) I order that the offender pay the prosecutor’s costs agreed in the sum of $15,000.

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 ProjectCorp Australia Pty Limited [2017] NSWDC 169
Hearing dates:	13 June 2017
Date of orders:	22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Criminal
Before:	Judge D. Russell
Decision:	(1) The offender is convicted. (2) I impose a fine of $90,000. (3) I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (4) I order that the offender pay the prosecutor’s costs agreed in the sum of $15,000.
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 – parity principle – appropriate penalty SENTENCING PRINCIPLES – parity – totality – remorse – contrition – appropriate penalty COSTS – prosecution costs OTHER – need for clear prohibition on operating machinery in an unsafe manner – need for supervision to ensure machinery is not operated in an unsafe manner
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	Veen v R (No. 2) (1998) 164 CLR; R v McNaughton (2006) 66 NSWLR 566; Baumer v R (1998) 166 CLR 51; BW v R [2011] NSWCCA 176; R v Wilkinson (No. 5) [2009] NSWSC 432; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; R v Thomson & Houlton (2000) 49 NSWLR 383; R v Borkowski (2009) 195 A Crim R 1; Jahandideh v R [2014] NSWCCA 178; Green v R [2011] HCA 49; DPP v Gregory [2011] VSCA 145; Jimmy v R (2010) 77 NSWLR 540; Markarian v R (2005) 228 CLR 357; WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316; Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125;
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor); ProjectCorp Australia Pty Limited (Offender)
Representation:	Counsel: Ms P. McEniery (Prosecutor); Mr M. Cahill (Offender) Solicitors: SafeWork NSW (Prosecutor) Holman Webb Lawyers (Offender)
File Number(s):	DC 2014/249992