District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v PV Solar Pro Pty Ltd [2021] NSWDC 258 Hearing dates: 7 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 PV Solar Pro Pty Ltd is convicted.
2 I impose a fine of $300,000.
3 The offender is to pay the prosecutor’s costs of the proceedings agreed at $70,000.
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 – fall from height – death of employee
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274
Hili v The Queen (2010) 253 CLR 58
Jahandideh v R [2014] NSWCCA 178
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence Parties: SafeWork NSW (Prosecutor)
PV Solar Pro Pty Ltd (Defendant)Representation: Counsel: B Docking (Prosecutor)
Solicitors: Legal, Department of Customer Service (Prosecutor)
T Epstein (Defendant)
Clyde & Co (Defendant)
File Number(s): 2020/241887 Publication restriction: None
Judgment
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PV Solar Pro Pty Ltd (PV Solar) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Jaryd Hayter, Nicholas Mills and Nicholas Pollock to a risk of death or serious injury.
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The maximum penalty for this offence is a fine of $1.5 million.
Facts
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The parties tendered an Agreed Statement of Facts that can be summarised as follows.
Background
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PV Solar, as Trustee of Elite Solar Pro, operated a business installing solar panels in residential and commercial buildings. PV Solar was a technical specialist installer that employed Clean Energy Council accredited installers and designers of solar panels.
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Mark Wheeler and Paul McCabe were the Managing Directors of PV Solar. Mr McCabe was also listed as a project manager in Energy Australia’s Commercial Installation WHS Management Plan.
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The Elite Solar Pro Occupational Health and Safety Employee Handbook dated 7 January 2017 (the Handbook) provided that, as Managing Directors, Mr Wheeler and Mr McCabe were responsible for implementing the company’s occupational health and safety (OHS) procedures and ensuring all staff are adequately trained in OHS management requirements.
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- Case
- [2021] NSWDC 258
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether PV Solar Pro Pty Ltd had breached its statutory duty as an employer to provide a safe working environment, and if so, the appropriate penalty for such a breach. The key issues included the objective seriousness of the offence, the need for deterrence, and the consideration of aggravating and mitigating factors in sentencing. The court also needed to weigh the principles of sentencing, including the company's lack of previous convictions, its prospects for rehabilitation, the presence of remorse, the timing of the guilty plea, and any assistance provided to the authorities.
In assessing the objective seriousness of the offence, the court considered the fatal nature of the incident and the clear breach of safety protocols. The company's lack of prior convictions and its cooperation with authorities were noted as mitigating factors. The plea of guilty and the demonstration of remorse further influenced the court's sentencing decision. After careful consideration, the court determined that a fine of $300,000 was appropriate, with additional orders for the payment of prosecution costs and a portion of the fine to be allocated to the prosecutor.
The court ordered that PV Solar Pro Pty Ltd be convicted of the charges. A fine of $300,000 was imposed, with an additional requirement that the company pay the prosecutor's costs, which were agreed upon at $70,000. Under section 122(2) of the Fines Act 1996, the court mandated that 50% of the fine amount be paid directly to the prosecutor.
Orders
Orders of the court
1 PV Solar Pro Pty Ltd is convicted.
2 I impose a fine of $300,000.
3 The offender is to pay the prosecutor’s costs of the proceedings agreed at $70,000.
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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