SafeWork NSW v Sandhu Construction Group Pty Ltd - [2021] NSWDC 193

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Sandhu Construction Group Pty Ltd [2021] NSWDC 193
Hearing dates: 29 April 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the defendant is $700,000.00 and that will be reduced by 5% to reflect a plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $665,000.00.
(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)   The defendant to pay the prosecutor’s costs as agreed or assessed.

Catchwords:
CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking
PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known
SENTENCE – 5% reduction for the utility of the plea.

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

Cases Cited:
Attorney General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35
Attorney General (NSW) v Tho Services Ltd (in liquidation) (2016) 264 IR 171
Bulga Underground Operations v Nash (2016) NSWLR 338
Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Green v The Queen (2011) 244 CLR 462
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 228 CLR 357
Morris McMahon & Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338
Orbit Drilling v The Queen (2012) 35 VR 399
R v Miria [2009] NSWCCA 68
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v ProjectCorp Australia Pty Ltd (2017) 25 DCLR (NSW) 219
SafeWork v P&K Bezzina [2020] NSWDC 91
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

Texts Cited:
The Australian Standard AS 3700-2011: Masonry Structures (October 2011)
WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2009)
WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2015)

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Sandhu Construction Group Pty Ltd (Defendant)
Representation:
Counsel:
Ms C Lee (Prosecutor)
Mr A Stewart, Solicitor (Defendant)
Solicitors: Department of Customer Service (Prosecutor)
Mr W Ellicott, Access Law Group

File Number(s): 2019/247438

JUDGMENT

On 21 April 2021, Sandhu Construction Group Pty Limited (‘the defendant’) entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’). That offence relates to a failure to comply with their duty under s…

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: [2021] NSWDC 193
Decision Date: 21 May 2021

CaseChat Overview and Summary

SafeWork NSW, acting on behalf of the NSW government, brought proceedings against Sandhu Construction Group Pty Ltd, a construction company, in relation to a workplace health and safety incident that resulted in the death of an employee. The case was heard in the Local Court of New South Wales. The primary issue before the court was whether the defendant had failed to ensure that its workers were not exposed to risks of death or serious injury by not taking all reasonably practicable measures to eliminate or mitigate those risks. The court had to consider the likelihood of the risk occurring, whether the risk was known, and what the defendant ought reasonably have known.

The court examined the evidence to determine if the defendant had failed in its duty to ensure health and safety. It assessed the likelihood of the risk occurring and the adequacy of the measures taken by the defendant to prevent the risk. The court found that the risk of death or serious injury was foreseeable and that the defendant had not taken all reasonably practicable steps to mitigate that risk. The court also considered the utility of the defendant's plea of guilty, which led to a reduction in the fine imposed. The court concluded that the defendant had failed to comply with its obligations under the relevant legislation.

The court ordered that the defendant be convicted and that it pay a fine of $700,000, reduced by 5% for the plea of guilty, resulting in a fine of $665,000. Half of this amount was to be paid to the prosecutor. The court also ordered that the defendant pay the prosecutor's costs as agreed or assessed. This decision highlights the importance of adhering to workplace health and safety regulations and the consequences of failing to do so.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the defendant is $700,000.00 and that will be reduced by 5% to reflect a plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $665,000.00.

(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) The defendant to pay the prosecutor’s costs as agreed or assessed.

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 Sandhu Construction Group Pty Ltd [2021] NSWDC 193
Hearing dates:	29 April 2021
Date of orders:	21 May 2021
Decision date:	21 May 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the defendant is $700,000.00 and that will be reduced by 5% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $665,000.00. (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) The defendant to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 5% reduction for the utility of the plea.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Regulation 2011
Cases Cited:	Attorney General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35 Attorney General (NSW) v Tho Services Ltd (in liquidation) (2016) 264 IR 171 Bulga Underground Operations v Nash (2016) NSWLR 338 Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Green v The Queen (2011) 244 CLR 462 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen (2005) 228 CLR 357 Morris McMahon & Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338 Orbit Drilling v The Queen (2012) 35 VR 399 R v Miria [2009] NSWCCA 68 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v ProjectCorp Australia Pty Ltd (2017) 25 DCLR (NSW) 219 SafeWork v P&K Bezzina [2020] NSWDC 91 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Texts Cited:	The Australian Standard AS 3700-2011: Masonry Structures (October 2011) WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2009) WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2015)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Sandhu Construction Group Pty Ltd (Defendant)
Representation:	Counsel: Ms C Lee (Prosecutor) Mr A Stewart, Solicitor (Defendant) Solicitors: Department of Customer Service (Prosecutor) Mr W Ellicott, Access Law Group
File Number(s):	2019/247438