SafeWork NSW v Silver Stone Hardware Pty Ltd - [2021] NSWDC 551

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Silver Stone Hardware Pty Ltd [2021] NSWDC 551
Hearing dates: 6 October 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine is $300,000.00 and that will be reduced by 25% to reflect the early plea.
(3)   Accordingly, I order the defendant pay a fine of $225,000.00.
(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) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $20,000.00.

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 sentence
OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
Jahandideh v R [2014] NSWCCA 178
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:
Australian Glass & Glazing Association Safety Fact Sheet

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Silver Stone Hardware Pty Ltd (Defendant)
Representation:
Mr M Scott of counsel (for the Prosecutor)
Mr P Barry of counsel (for the Defendant)
Solicitors: Mr A El-Roubaei, Department of Customer Service (for the Prosecutor)
Ms Amanda Harvey, Heathfield Grosvenor Lawyers (for the Defendant)

File Number(s): 2020/32188

JUDGMENT

On 26 April 2021, Silver Stone Hardware Pty Ltd (‘the defendant’) entered a…

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 551
Decision Date: 15 October 2021

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Silver Stone Hardware Pty Ltd, alleging breaches of work health and safety laws under section 19(1) of the Work Health and Safety Act 2011 (NSW). The dispute centred around the defendant's failure to ensure the safety of its employees, resulting in an incident that posed a significant risk of death or serious injury. The case was heard in the Local Court of New South Wales.

The court had to determine the appropriate penalty for the defendant's breaches of work health and safety regulations. The issues included assessing the objective seriousness of the offence, identifying mitigating and aggravating factors, and determining the appropriate fine and other penalties. The defendant had pleaded guilty, which was considered a mitigating factor. However, the severity of the breach and the need for deterrence were also taken into account.

In deciding the penalty, the court considered the objective seriousness of the offence, which involved a significant risk to employees' lives. The early plea of guilty was a mitigating factor, leading to a 25% reduction in the fine. The court imposed a fine of $300,000, reduced to $225,000 due to the plea. Additionally, 50% of the fine was to be paid to the prosecutor, and the defendant was ordered to pay the prosecutor’s costs of $20,000. The sentence aimed to serve both general and specific deterrence, reflecting the gravity of the breach and the need to uphold work health and safety standards.

The court ordered the defendant to pay a fine of $225,000, with 50% of that amount payable to SafeWork NSW. The defendant was also required to pay the prosecutor’s costs of $20,000. The sentence was designed to reflect the seriousness of the offence, provide deterrence, and ensure compliance with work health and safety laws in the future.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine is $300,000.00 and that will be reduced by 25% to reflect the early plea.

(3) Accordingly, I order the defendant pay a fine of $225,000.00.

(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) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $20,000.00.

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 Silver Stone Hardware Pty Ltd [2021] NSWDC 551
Hearing dates:	6 October 2021
Date of orders:	15 October 2021
Decision date:	15 October 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine is $300,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $225,000.00. (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) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $20,000.00.
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 sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Jahandideh v R [2014] NSWCCA 178 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited:	Australian Glass & Glazing Association Safety Fact Sheet
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Silver Stone Hardware Pty Ltd (Defendant)
Representation:	Mr M Scott of counsel (for the Prosecutor) Mr P Barry of counsel (for the Defendant) Solicitors: Mr A El-Roubaei, Department of Customer Service (for the Prosecutor) Ms Amanda Harvey, Heathfield Grosvenor Lawyers (for the Defendant)
File Number(s):	2020/32188