SafeWork NSW v Twin Connect Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Twin Connect Pty Ltd [2024] NSWDC 568

Hearing dates:

27 November 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Twin Connect Pty Ltd is convicted.

2   I impose a fine of $180,000.

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

4 I order that 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 person undertaking business – duty of employer – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine

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

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Twin Connect Pty Ltd (Offender)

Representation:

Counsel:
K Curry (Prosecutor)
M Shume (Offender)

Solicitors:
Department of Customer Service (Prosecutor)
Gillis Delaney Lawyers (Offender)

File Number(s):

2023/451340

Publication restriction:

None

JUDGMENT

1. Twin Connect Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Amanda Newton to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of 17,315 penalty units ($1,782,579).

Facts

3. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentenced imposed.

The persons conducting a business or undertaking

4. The offender carried on a business or undertaking as an Authorised Service Provider (ASP) of electrical and telecommunications infrastructure.

5. The offender was engaged by Vocus Communications Pty Ltd (Vocus) to conduct directional drilling and the installation of telecommunication pipes and pits along a 4km stretch of Wallgrove Road, Cecil Park (the site). Vocus was the principal contractor for the site.

6. The offender engaged or caused to be engaged Connect Traffic Management Pty Ltd (CTM) as an independent contractor to provide traffic control plans for the project and to undertake traffic control and traffic management at the site, including by providing traffic…