SafeWork NSW v TJN Construction Group Pty Ltd

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District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v TJN Construction Group Pty Ltd [2024] NSWDC 563
Hearing dates: 24 September 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction:Criminal
Before: Strathdee DCJ
Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty, leaving a fine of $300,000.

(3) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine will be reduced by one third.

(4)   Accordingly, I order the defendant to pay a fine of $200,000.

(5) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(6) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – recklessness – maximum penalty

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – parity – maximum penalties – capacity to pay

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Criminal Procedure Act 1986 (NSW), s 257B

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 31, 32, 242B

Work Health and Safety Regulation 2017 (NSW), cll 44, 51, 52, 299, 312, 344, 355

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100

Inspector Fraser vKarabelas(No2) [2011] NSWIRComm 153

Jahandideh v R [2014] NSWCCA 178

Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60

Kirk v Industrial Court (NSW) 234 CLR 531; [2010] HCA 1

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Lawrenson Diecasting Pty Ltd v WorkCover Authority(NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

Muldrock v The Queen

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Details
Case
[2024] NSWDC 563
Decision Date

CaseChat Overview and Summary

SafeWork NSW brought an action against TJN Construction Group Pty Ltd in the Local Court of New South Wales for breaches of work health and safety laws. The case centred on allegations that the defendant failed to take reasonable steps to ensure the safety of workers, resulting in significant risk of death or serious injury. The defendant pleaded guilty to the charges, leading to a sentencing hearing to determine the appropriate penalty.

The court was required to consider various legal issues, including the objective seriousness of the offence, mitigating and aggravating factors, the utility of the defendant's guilty plea, and the need for general and specific deterrence. Additionally, the court assessed the defendant’s capacity to pay and the principles of parity in sentencing. Given the maximum penalties available for the offences, the court also had to determine the appropriate fine while balancing the need for deterrence against the mitigating factors presented.

The court found that the breaches were serious, with a high risk of death or serious injury. However, it also recognised the defendant's early guilty plea, which warranted a reduction in the fine. The court applied a 25% discount for the plea, followed by a further one-third reduction under the Fines Act 1996 (NSW). Consequently, the court imposed a fine of $200,000, with half of that amount payable to the prosecutor. Furthermore, the defendant was ordered to pay the prosecutor’s costs as per the relevant statutory provisions.

The final orders of the court were that the defendant is convicted of the offence. The fine imposed is $200,000, with 50% payable to the prosecutor. Additionally, the defendant is to pay the prosecutor’s costs as per the statutory provisions.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty, leaving a fine of $300,000.

(3) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine will be reduced by one third.

(4) Accordingly, I order the defendant to pay a fine of $200,000.

(5) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(6) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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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