SafeWork NSW v Richard Crookes Constructions Pty Ltd

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District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Richard Crookes Constructions Pty Ltd [2024] NSWDC 584
Hearing dates: 29 November 2024
Date of orders: 12 December 2024
Decision date: 12 December 2024
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   Richard Crookes Constructions Pty Ltd is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Richard Crookes Constructions Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Richard Crookes Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $75,000.

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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from height – formwork – inadequately covered penetrations – failure to maintain exclusion zones – penetration cover gave way – worker fell through penetration

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW) Pt 4

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

SafeWork NSW Code of Practice, Construction Work, August 2019

SafeWork NSW Code of Practice, Managing the Risk of Falls at the Workplaces,…

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Details
Case
[2024] NSWDC 584
Decision Date

CaseChat Overview and Summary

SafeWork NSW prosecuted Richard Crookes Constructions Pty Ltd for a contravention of work health and safety legislation following an incident where a worker fell through an inadequately covered penetration in formwork at a construction site. The court determined the seriousness of the incident and the penalty that would be appropriate, taking into account the company’s plea of guilty and other relevant factors. The legal issues included the objective seriousness of the contravention, the factors that should be considered in determining the penalty, and the costs that should be imposed on the company.

The court found that the incident had resulted in a serious risk of death or serious injury to the worker and that the company had breached its duty under the relevant legislation. The company’s early guilty plea was a mitigating factor, but the court also considered the need for general and specific deterrence, as well as the company’s capacity to pay an appropriate penalty. The court determined that a fine of $200,000 was appropriate, but reduced it by 25% to reflect the early plea of guilty, resulting in a fine of $150,000. The court also ordered that 50% of the fine be paid to the prosecutor and that the company pay the prosecutor’s costs of $75,000.

The court’s reasoning was based on the objective seriousness of the contravention, the need for general and specific deterrence, and the mitigating and aggravating factors. The company’s early guilty plea was a significant mitigating factor, but the court also considered the need to ensure that the penalty was sufficient to deter the company and others from engaging in similar conduct in the future. The court determined that the fine should be reduced by 25% to reflect the early plea of guilty, but that the company should still pay a substantial penalty. The court also ordered that 50% of the fine be paid to the prosecutor and that the company pay the prosecutor’s costs, which were agreed upon in the amount of $75,000.

The final orders of the court were that Richard Crookes Constructions Pty Ltd be convicted, that a fine of $150,000 be imposed, that 50% of the fine be paid to the prosecutor, and that the company pay the prosecutor’s costs of $75,000. The court’s decision reflects the importance of enforcing work health and safety legislation and holding companies accountable for breaches that result in serious risks to workers.

Orders

Orders of the court

(1) Richard Crookes Constructions Pty Ltd is convicted.

(2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Richard Crookes Constructions Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5) Order Richard Crookes Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $75,000.

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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