SafeWork NSW v Simos Scaffolding Pty Ltd - [2021] NSWDC 443

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443
Hearing dates: 24 August 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Simos Scaffolding Pty Ltd was convicted on 24 August 2021.
(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Simos Scaffolding 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 Simos Scaffolding Pty Ltd to pay the prosecutor’s costs agreed in the amount of $40,000.

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 – worker was electrocuted after a 4.7-metre reo bar protruding from a scaffold deck over a plywood hoarding made contact with high voltage power lines – fitted hoarding was not an impenetrable barrier – high voltage power lines were visible from the scaffold deck – absence of electrical hazard warning signs

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E
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), cl 166

Cases Cited:
Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
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
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
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
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
AS/NZS 4576:1995 Guidelines for Scaffolding
Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines, July 2014
Safe Work Australia, Scaffolding Work near Overhead Electric Lines Information Sheet, July 2014
WorkCover, Code of Practice – Work Near Overhead Power Lines (WorkCover of NSW Publication No. 1394)

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Simos Scaffolding Pty Ltd (Defendant)
Representation:
Counsel:
N Read (Prosecutor)
R Coffey (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Sparke…

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 443
Decision Date: 27 August 2021

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Simos Scaffolding Pty Ltd in relation to an incident where a worker was electrocuted. The incident occurred when a protruding reo bar from a scaffold deck made contact with high voltage power lines, resulting in the worker's death. The scaffold was not equipped with an impenetrable barrier, and the power lines were visible from the deck. Additionally, there were no electrical hazard warning signs present. The case was heard in the relevant court where the company pleaded guilty.

The primary legal issues before the court were the appropriate penalty for the breach of work health and safety regulations and the consideration of factors that would inform the sentencing decision. The court had to assess the objective seriousness of the offence, taking into account the risk of death or serious injury, the mitigating and aggravating factors, the plea of guilty, and the need for general and specific deterrence. Furthermore, the court had to determine the capacity of the company to pay an appropriate penalty.

The court found that the company's actions constituted a significant breach of work health and safety regulations, given the high risk of death or serious injury. The court acknowledged the company's early plea of guilty, which led to a reduction in the penalty. However, the court also considered the absence of safety measures and the visibility of the power lines from the scaffold as aggravating factors. Ultimately, the court imposed a fine of $150,000, which was a 25% reduction from the initial $200,000 due to the early plea. Additionally, the court ordered that 50% of the fine be paid to the prosecutor and that the company pay the agreed prosecution costs of $40,000.

The court issued several orders, including a conviction against Simos Scaffolding Pty Ltd on 24 August 2021, a fine of $150,000, and the payment of 50% of the fine to the prosecutor. Furthermore, the court ordered the company to pay the agreed prosecution costs of $40,000. These orders reflect the court's consideration of the breach of work health and safety regulations, the mitigating and aggravating factors, and the need for deterrence and appropriate penalty.

Orders

Orders of the court

(1) Simos Scaffolding Pty Ltd was convicted on 24 August 2021.

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

(3) Order Simos Scaffolding 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 Simos Scaffolding Pty Ltd to pay the prosecutor’s costs agreed in the amount of $40,000.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443
Hearing dates:	24 August 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Simos Scaffolding Pty Ltd was convicted on 24 August 2021. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Simos Scaffolding 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 Simos Scaffolding Pty Ltd to pay the prosecutor’s costs agreed in the amount of $40,000.
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 – worker was electrocuted after a 4.7-metre reo bar protruding from a scaffold deck over a plywood hoarding made contact with high voltage power lines – fitted hoarding was not an impenetrable barrier – high voltage power lines were visible from the scaffold deck – absence of electrical hazard warning signs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E 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), cl 166
Cases Cited:	Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319 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 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 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 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	AS/NZS 4576:1995 Guidelines for Scaffolding Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines, July 2014 Safe Work Australia, Scaffolding Work near Overhead Electric Lines Information Sheet, July 2014 WorkCover, Code of Practice – Work Near Overhead Power Lines (WorkCover of NSW Publication No. 1394)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Simos Scaffolding Pty Ltd (Defendant)
Representation:	Counsel: N Read (Prosecutor) R Coffey (Defendant) Solicitors: SafeWork NSW (Prosecutor) Sparke…