SafeWork NSW v Travis Brown - [2017] NSWDC 337

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Travis Brown [2017] NSWDC 337
Hearing dates: 16 November 2017
Date of orders: 24 November 2017
Decision date: 24 November 2017
Jurisdiction: Criminal
Before: Judge D. Russell
Decision:
In relation to the offence under s 19(1) of the Work Health and Safety Act 2011:

(1)   The offender is convicted.
(2)   Order the offender to pay a fine of $60,000.
(3)   Order that 50% of the fine is to be paid to the prosecutor.
(4)   Order the offender to pay the prosecutor’s costs agreed in the sum of $21,455.88.

In relation to the offence under s. 38(1) of the Work Health and Safety Act 2011:
(1)   The offender is convicted.
(2)   Order the offender to pay a fine of $1,500.
(3)   Order 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 – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs
OTHER – fall from height – need for risk assessment – need for falls prevention system
Legislation Cited: Work Health and Safety Act 2011;
Crimes (Sentencing Procedure) Act 1999;
Fines Act 1996
Cases Cited: Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
Jahandideh v R [2014] NSWCCA 178;
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Texts Cited: Managing Risks of Falls at Workplaces
National Code of Practice For The Prevention of Falls in General Construction
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Travis Brown (Defendant)
Representation:
Counsel:
Ms P. McEniery (Prosecutor)
Mr B. Taylor (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Australian Business Lawyers & Advisors (Defendant)

File Number(s): 2016/3172452016/317261

Judgment

Mr Travis Brown (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) he failed to comply with that duty and thereby exposed Mr Ian Dodemaide to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $300,000.
The offender has also pleaded guilty to an offence that being a person…

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: [2017] NSWDC 337
Decision Date: 24 November 2017

CaseChat Overview and Summary

In SafeWork NSW v Travis Brown, the defendant was prosecuted for breaches of the Work Health and Safety Act 2011 by SafeWork NSW, the regulatory body for workplace health and safety in New South Wales. The defendant was charged with failing to provide a safe working environment, which resulted in a worker falling from a height and sustaining serious injuries. The matter was heard and determined in the Local Court of New South Wales.

The court was tasked with deciding several legal issues, including the objective seriousness of the offences, the role of mitigating and aggravating factors in sentencing, and the appropriate penalty for the defendant. The court also needed to consider the principles of totality in sentencing, the defendant's level of remorse and contrition, and the need for general and specific deterrence in the sentencing process. Additionally, the court had to address the defendant's plea of guilty, which was a significant mitigating factor.

The court found the defendant guilty on both charges. In determining the appropriate penalty, the court considered the objective seriousness of the offences, the need for risk assessment and falls prevention systems, and the mitigating and aggravating factors. The defendant's plea of guilty was taken into account as a mitigating factor. The court ordered the defendant to pay a fine of $60,000 for the more serious charge, with 50% of the fine payable to the prosecutor, and a fine of $1,500 for the lesser charge, with 50% payable to the prosecutor. The defendant was also ordered to pay the agreed prosecution costs of $21,455.88.

The final orders of the court included convictions on both charges, fines totalling $61,500, and payment of $31,277.94 to the prosecutor, which included the fines and costs. The court's decision emphasised the importance of workplace health and safety and the need for employers to take reasonable steps to prevent risks to their employees.

Orders

Orders of the court

In relation to the offence under s 19(1) of the Work Health and Safety Act 2011:

(1) The offender is convicted.

(2) Order the offender to pay a fine of $60,000.

(3) Order that 50% of the fine is to be paid to the prosecutor.

(4) Order the offender to pay the prosecutor’s costs agreed in the sum of $21,455.88.

In relation to the offence under s. 38(1) of the Work Health and Safety Act 2011:

(1) The offender is convicted.

(2) Order the offender to pay a fine of $1,500.

(3) Order 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 Travis Brown [2017] NSWDC 337
Hearing dates:	16 November 2017
Date of orders:	24 November 2017
Decision date:	24 November 2017
Jurisdiction:	Criminal
Before:	Judge D. Russell
Decision:	In relation to the offence under s 19(1) of the Work Health and Safety Act 2011: (1) The offender is convicted. (2) Order the offender to pay a fine of $60,000. (3) Order that 50% of the fine is to be paid to the prosecutor. (4) Order the offender to pay the prosecutor’s costs agreed in the sum of $21,455.88. In relation to the offence under s. 38(1) of the Work Health and Safety Act 2011: (1) The offender is convicted. (2) Order the offender to pay a fine of $1,500. (3) Order 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 – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty COSTS – prosecution costs OTHER – fall from height – need for risk assessment – need for falls prevention system
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	Veen v R (No. 2) (1998) 164 CLR; R v McNaughton (2006) 66 NSWLR 566; Baumer v R (1998) 166 CLR 51; BW v R [2011] NSWCCA 176; R v Wilkinson (No. 5) [2009] NSWSC 432; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37; R v Thomson & Houlton (2000) 49 NSWLR 383; R v Borkowski (2009) 195 A Crim R 1; Jahandideh v R [2014] NSWCCA 178; Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Texts Cited:	Managing Risks of Falls at Workplaces National Code of Practice For The Prevention of Falls in General Construction
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Travis Brown (Defendant)
Representation:	Counsel: Ms P. McEniery (Prosecutor) Mr B. Taylor (Defendant) Solicitors: SafeWork NSW (Prosecutor) Australian Business Lawyers & Advisors (Defendant)
File Number(s):	2016/3172452016/317261