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SafeWork NSW v Thompson

SafeWork NSW v Thompson

Case [2021] NSWDC 689 17 December 2021

Prosecution

Risk of Death or Serious Injury

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Thompson [2021] NSWDC 689
Hearing dates: 15 December 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Stephen Craig Thompson was convicted on 15 December 2021.
(2)   The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Stephen Craig Thompson to pay a fine of $30,000.
(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 Stephen Craig Thompson to pay the prosecutor’s costs.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of officers – 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 – parity - victim impact statement
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 - no formal processes for assessing and managing hazards

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
Work Health and Safety Regulation 2017 (NSW), cll 166, 225.

Cases Cited:
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
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
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
SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001]…

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 Thompson

Details

AGLC: SafeWork NSW v Thompson [2021] NSWDC 689
Case: [2021] NSWDC 689
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of SafeWork NSW v Thompson involved a criminal prosecution for breaches of work health and safety regulations. The defendant, Stephen Craig Thompson, was charged under the relevant NSW statutes for failing to ensure that the work environment was safe and without risks to health, which resulted in an employee being electrocuted. The incident occurred when a reo bar protruding from a scaffold deck made contact with high voltage power lines. The court was required to determine the legal culpability of the defendant and the appropriate penalty.

The court needed to address several legal issues, including the extent of the defendant's duty of care under the work health and safety legislation, the objective seriousness of the breach, and the appropriate penalty considering various mitigating and aggravating factors. The defendant pleaded guilty, which warranted a reduction in the potential penalty. The court had to weigh the objective seriousness of the offence, which involved a high risk of death or serious injury, against the mitigating factor of the defendant's early guilty plea.

The court found that the absence of adequate safety measures and the clear visibility of the high voltage power lines from the scaffold deck constituted a serious breach of safety regulations. Despite the mitigating factor of the early guilty plea, the court imposed a fine of $30,000, reflecting a 25% reduction. The court also mandated that 50% of the fine be paid to the prosecutor and ordered the defendant to pay the prosecution costs. The decision underscored the importance of stringent safety protocols in preventing workplace accidents and the need for accountability in ensuring compliance with work health and safety laws.

Orders

Orders of the court

(1) Stephen Craig Thompson was convicted on 15 December 2021.

(2) The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Stephen Craig Thompson to pay a fine of $30,000.

(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 Stephen Craig Thompson to pay the prosecutor’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SafeWork NSW v Thompson [2021] NSWDC 689

Most Recent Citation

Bradley Cummins v RAR Cranes Pty Ltd [2022] ACTIC 1

Cases citing this decision · 1 of 1 shown

Bradley Cummins v RAR Cranes Pty Ltd
[2022] ACTIC 1 Para 1

…v The Queen; Quinn v The Queen [2011] HCA 49 at [30]; Murray v IA [2020] ACTSC 288; Saipani v R ACTCA [2021] 5; Safework NSW V Stephen Craig Thompson [2021] NSWDC 689 [164]-[170]).…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

SafeWork NSW v Simos Scaffolding Pty Ltd
[2021] NSWDC 443 Para 164

…for a reduced capacity to pay, the fine for Simos would have been $400,000 reduced by 25% for an early plea: SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443 at [128].…
Unity Pty Limited v SafeWork NSW
[2018] NSWCCA 266 Para 172

…In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:…
Bulga Underground Operations v Nash
[2017] NSWCCA 96 Para 149

…regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:…
Bulga Underground Operations Pty Ltd v Nash
[2016] NSWCCA 37 Para 154

…safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].…
Mahdi Jahandideh v The Queen
[2014] NSWCCA 178 Para 171

…exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 165

…lication of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].…
Muldrock v The Queen
[2011] HCA 39 Para 145

…In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:…
DPP (Cth) v Gregory
[2011] VSCA 145 Para 166

…The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs…
BW v R
[2011] NSWCCA 176 Para 144

…ive seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].…
Jimmy v R
[2010] NSWCCA 60 Para 166

…ant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory . In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 146

…ng circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].…
R v McNaughton
[2006] NSWCCA 242 Para 143

…sed to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].…
Markarian v The Queen
[2005] HCA 25 Para 167

…ence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.…
Baumer v R
[1988] HCA 67 Para 144

…The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of t…
Veen v The Queen (No 2)
[1988] HCA 14 Para 143

…hat a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the cri…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 27, 28, 30A, 30B, 30D, 30E, 3A 11 mentions (from Para 142)
Work Health and Safety Act 2011 (ACT)
19, 27, 3, 32 5 mentions (from Para 2)
Fines Act 1996 (NSW)
122, 6 3 mentions (from Para 171)

Medium Neutral Citation:	SafeWork NSW v Thompson [2021] NSWDC 689
Hearing dates:	15 December 2021
Date of orders:	17 December 2021
Decision date:	17 December 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Stephen Craig Thompson was convicted on 15 December 2021. (2) The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Stephen Craig Thompson to pay a fine of $30,000. (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 Stephen Craig Thompson to pay the prosecutor’s costs.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of officers – 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 – parity - victim impact statement 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 - no formal processes for assessing and managing hazards
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cll 166, 225.
Cases Cited:	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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001]…