SafeWork NSW v Stitt - [2024] NSWDC 396

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Stitt [2024] NSWDC 396
Hearing dates: 20 August 2024
Date of orders: 02 September 2024
Decision date: 02 September 2024
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   Jason Reid Stitt is convicted.
2   I impose a fine of $100,000.
3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4   The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
WORK HEALTH AND SAFETY – workers not qualified to erect scaffolding

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2017 (NSW)

Cases Cited:
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Jahandideh v R [2014] NSWCCA 178
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Jason Stitt [2024] NSWDC 255

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Jason Stitt (Offender)
Representation:
Counsel:
C Magee (Prosecutor)
M Baroni (Offender)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Barry Nilsson Lawyers (Offender)

File Number(s): 2021/256592
Publication restriction: None

JUDGMENT

Introduction

Jason Reid Stitt (the offender) appears for sentence after being found guilty at trial of an offence under s 32 Work Health and Safety Act 2011 (the Act).
The Court’s reasons for the finding of guilt are set out in the decision SafeWork NSW v Jason Stitt [2024] NSWDC 255 (the verdict judgment). This judgment assumes familiarity with the verdict judgment and adopts the defined terms used in the verdict judgment.
The maximum penalty for the offence is a fine of $300,000.

Facts

The factual findings are set out in the verdict judgment. I have taken all of those findings into account in coming to the appropriate sentence. What follows is a brief summary of the relevant factual findings in the verdict judgment to permit an understanding of the sentence imposed.
The offender is a licenced builder operating as a sole trader, under the business name ReidStitt Constructions (RSC). The offender’s business consisted mainly of renovating private residences in the Eastern Suburbs of Sydney.
From about 2015, RSC was engaged to undertake building work at 16 Longworth Avenue, Point Piper (the property). In 2018, the property was purchased by Neville Crichton, who contracted with RSC to continue the renovation works and to undertake other work from time to time.
Following the installation of an underfloor heating system at the property by Devex Systems Pty Ltd trading as Floor Heat Australia (Devex) in about…

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.

Continue reading SafeWork NSW v Stitt

Details

AGLC: SafeWork NSW v Stitt [2024] NSWDC 396
Case: [2024] NSWDC 396
Decision Date: 02 September 2024

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Jason Reid Stitt, arising from a workplace incident that resulted in the death of a worker. The dispute centred around alleged breaches of work health and safety laws, specifically the duty of employers and persons undertaking business to prevent risks that could cause death or serious injury. The matter was heard in the Local Court of New South Wales.

The court had to determine whether Stitt, as an employer and a person undertaking business, failed to comply with his statutory obligations under the work health and safety legislation. The central issue was whether Stitt's conduct demonstrated a breach of his duty to ensure that workers were not exposed to risks that could lead to death or serious injury, particularly given that the workers involved were not qualified to erect scaffolding. Additionally, the court had to consider appropriate sentencing principles, including objective seriousness, deterrence, and factors such as the offender's capacity to pay a fine, as well as any aggravating or mitigating circumstances.

The court found that Stitt was responsible for ensuring the safety of workers and that his failure to provide proper training and supervision resulted in a breach of his duties. The court noted the objective seriousness of the offence, considering the tragic outcome of the incident. Aggravating factors included the failure to ensure workers were qualified, while mitigating factors encompassed Stitt's plea of guilty, his lack of a criminal record, and his remorse. The court imposed a fine of $100,000, ordered that 50% of the fine be paid to the prosecutor, and required Stitt to pay the prosecutor's costs as agreed or assessed.

Orders

Orders of the court

1 Jason Reid Stitt is convicted.

2 I impose a fine of $100,000.

3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

4 The offender is to pay the prosecutor’s costs of the proceedings 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Stitt [2024] NSWDC 396
Hearing dates:	20 August 2024
Date of orders:	02 September 2024
Decision date:	02 September 2024
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Jason Reid Stitt is convicted. 2 I impose a fine of $100,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities WORK HEALTH AND SAFETY – workers not qualified to erect scaffolding
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Work Health and Safety Regulation 2017 (NSW)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Jason Stitt [2024] NSWDC 255
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Jason Stitt (Offender)
Representation:	Counsel: C Magee (Prosecutor) M Baroni (Offender) Solicitors: Legal, Department of Customer Service (Prosecutor) Barry Nilsson Lawyers (Offender)
File Number(s):	2021/256592
Publication restriction:	None