SafeWork NSW v SLD Projects Pty Ltd - [2022] NSWDC 574

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v SLD Projects Pty Ltd [2022] NSWDC 574
Hearing dates: 14 November 2022
Date of orders: 18 November 2022
Decision date: 18 November 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   SLD Projects Pty Ltd is convicted.
2   The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty.
3   I impose a fine of $180,000.
4   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.
5 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 – injury to worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – penalty
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
Work Health and Safety Act 2011

Cases Cited:
Attorney-General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35
Attorney-General (NSW) v DSF Constructions Pty Ltd [2019] NSWCCA 33
Attorney-General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Fines Act 1996
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
SLD Projects Pty Ltd (Defendant)
Representation:
Counsel:
N Read (Prosecutor)
E James (Defendant)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2021/256543
Publication restriction: None

JUDGMENT

Introduction

SLD Projects Pty Ltd (the offender) 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 Mark Prendergast to a risk of death or serious injury.
The maximum penalty for the offence is $1.5 million.

Facts

The parties tendered an Agreed Statement of Facts that can be summarised as follows.

Background

The offender conducted a business involving provision of home building construction services, including new home builds and alterations and extensions to existing homes.
Simon La Delfa was the offender’s sole director and sole employee. Mr La Delfa managed the business and was personally involved in work undertaken by the offender. He worked alongside and supervised workers engaged by the offender.
The offender was engaged on a project to renovate and extend a residential home (the project) in Forestville NSW (the site). The offender was the principal contractor for the project.
On or around 23 July 2019 the offender engaged Labour Revolution…

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: [2022] NSWDC 574
Decision Date: 18 November 2022

CaseChat Overview and Summary

SafeWork NSW prosecuted SLD Projects Pty Ltd, a company involved in the construction industry, for breaches of work health and safety regulations that led to a serious injury to a worker. The matter was heard in the Downing Centre Local Court. The dispute centred on whether the company breached its duty under work health and safety laws by failing to ensure the safety of its workers, specifically by not providing adequate measures to prevent falls from height, resulting in a worker sustaining serious injuries.

The court had to determine whether the company failed to meet its duty of care and if the prosecution proved the requisite intent or recklessness. Additionally, the court needed to assess the objective seriousness of the breach, considering factors such as the risk of death or serious injury, the extent of the harm caused, and the company's history of compliance with health and safety regulations. The court also evaluated various sentencing principles, including the offender's criminal history, prospects of rehabilitation, expression of remorse, and the assistance provided to law enforcement.

The court found that SLD Projects Pty Ltd was guilty of the charges, highlighting the significant risk to workers' safety posed by the company's actions. Despite the company having no previous convictions, the court considered the severity of the breach and the serious injury caused. The court acknowledged the company's cooperation with authorities and its plea of guilty as mitigating factors. After weighing all relevant considerations, the court imposed a fine of $180,000, reduced from $240,000 due to the guilty plea, and ordered the company to pay the prosecutor's costs and half of the fine to be directed to the prosecutor.

Orders

Orders of the court

1 SLD Projects Pty Ltd is convicted.

2 The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty.

3 I impose a fine of $180,000.

4 The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

5 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

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 SLD Projects Pty Ltd [2022] NSWDC 574
Hearing dates:	14 November 2022
Date of orders:	18 November 2022
Decision date:	18 November 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 SLD Projects Pty Ltd is convicted. 2 The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty. 3 I impose a fine of $180,000. 4 The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed. 5 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 – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – penalty 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 Work Health and Safety Act 2011
Cases Cited:	Attorney-General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35 Attorney-General (NSW) v DSF Constructions Pty Ltd [2019] NSWCCA 33 Attorney-General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Fines Act 1996 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) SLD Projects Pty Ltd (Defendant)
Representation:	Counsel: N Read (Prosecutor) E James (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Sparke Helmore Lawyers (Defendant)
File Number(s):	2021/256543
Publication restriction:	None