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SafeWork NSW v Universal Propping & Supports Pty Limited

SafeWork NSW v Universal Propping & Supports Pty Limited

Case [2023] NSWDC 348 1 September 2023

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Universal Propping & Supports Pty Limited [2023] NSWDC 348
Hearing dates: 23 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $400,000.00 and that will be reduced by 25% to reflect the plea of guilty.
(3)   That results in a fine of $300,000.00.
(4) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine is to be reduced by 50%.
(5)   Accordingly, I order the defendant to pay a fine of $150,000.00.
(6) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(7) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $30,000.00.

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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties – capacity to pay
COSTS – prosecutor’s costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health & Safety Regulation 2017 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
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 (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 v Karabelas(No 2) [2011] NSWIRComm 153
Jahandideh v R [2014] NSWCCA 178
Latoudis v Casey (1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
Muldrock v The Queen (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
Rahme v R (1989) 43 A Crim R 81
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v Harris Holdings NSW Pty…

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 Universal Propping & Supports Pty Limited

Details

AGLC: SafeWork NSW v Universal Propping & Supports Pty Limited [2023] NSWDC 348
Case: [2023] NSWDC 348
Decision Date: 01 September 2023

CaseChat Overview and Summary

SafeWork NSW brought an action against Universal Propping & Supports Pty Limited in the Local Court of New South Wales over an incident involving a breach of work health and safety laws, resulting in a risk of death or serious injury. The defendant pleaded guilty to the offence under the relevant statutes. The primary legal issues before the court were the determination of the appropriate penalty, considering the objective seriousness of the offence, any mitigating and aggravating factors, the defendant’s plea of guilty, and the need for general and specific deterrence.

The court assessed the objective seriousness of the offence, noting the significant risk posed to workers' safety and the breach of the defendant's duty under the work health and safety laws. The court also considered mitigating factors such as the defendant's plea of guilty, which resulted in a 25% discount on the penalty, and the defendant's demonstrated remorse and contrition. Aggravating factors included the potential for serious harm and the defendant's previous history of similar breaches. The court applied these considerations to determine a fine that would serve both as a deterrent and as a punishment fitting the gravity of the offence. Ultimately, the court decided on a fine of $150,000.00, reflecting the need for a substantial penalty while accounting for the mitigating factors and the utility of the guilty plea.

In addition to the fine, the court ordered that half of the fine be paid to the prosecutor and mandated the defendant to pay the prosecutor's costs, which were agreed upon at $30,000.00. The court's decision balanced the need for deterrence with the practicalities of the defendant's financial capacity and the principles of proportionality and fairness. The orders reflect the court's aim to uphold the law and ensure that breaches of work health and safety standards are met with appropriate consequences.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $400,000.00 and that will be reduced by 25% to reflect the plea of guilty.

(3) That results in a fine of $300,000.00.

(4) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine is to be reduced by 50%.

(5) Accordingly, I order the defendant to pay a fine of $150,000.00.

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

(7) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $30,000.00.

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

SafeWork NSW v Universal Propping & Supports Pty Limited [2023] NSWDC 348

Cases Citing This Decision

No citing cases yet.

Cases Cited

SafeWork NSW v McInerney Enterprises Pty Ltd;; SafeWork NSW v Taylor McInerney [2023] NSWDC 56
Citation 1 (Para 106)

…Work NSW v Technical Works Pty Ltd [2022] NSWDC 454, and my decision in SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56. I have had regard to both of those decisions in coming to my determination in this matter.…
SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454
Citation 2 (Para 106)

…sed me with regard to the issue of parity, and directed my attention to a decision of his HH Russell SC DCJ in SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454, and my decision in SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56. I have had regard to both of those…
R v Thompson [2021] SASCA 40
Citation 3

…ood character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general…
R v Thomson [2020] NSWDC 577
Citation 4 (Para 104)

…ndant is entitled to the usual 25% deduction for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act. However, the Prosecutor very fairly notes that the plea was entered to an amended Summons.…
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
Citation 5 (Para 61)

…The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:…
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
Citation 6 (Para 6)

…The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).…
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Citation 7 (Para 111)

…In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:…
SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 182
Citation 8 (Para 5)

…Holdings NSW Pty Ltd [2017] NSWDC 299; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]–[141]; SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 182 at [23]–[24].…
SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299
Citation 9 (Para 5)

…IR 188 at [209]–[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]–[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]–[141]; SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 182 at [23]–[24].…
Bulga Underground Operations v Nash [2017] NSWCCA 96
Citation 10 (Para 69)

…The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ( ‘Nash v Silver City’ ). His Honour Justice Basten, under the heading ‘Assessment of Risk’ said at [34]:…
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Citation 11

…egulation 2017 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fisher v…
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Citation 12 (Para 73)

…, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).…
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Citation 13 (Para 109)

…The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).…
The Queen v Putra Hendra [2014] ACTSC 102
Citation 14 (Para 62)

…he primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]:…
Orbit Drilling v The Queen [2012] VSCA 82
Citation 15 (Para 65)

…ure, so far as was reasonably practicable, that its workers and other persons were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.…
Muldrock v The Queen [2011] HCA 39
Citation 16

…ss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any…
R v Miria [2009] NSWCCA 68
Citation 17 (Para 85)

…When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.…
R v Cage [2006] NSWCCA 304
Citation 18 (Para 72)

…to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).…
R v MMK [2006] NSWCCA 272
Citation 19 (Para 71)

…section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.…
Environment Protection Authority v Barnes [2006] NSWCCA 246
Citation 20 (Para 115)

…s own costs that it will have to bear as a consequence of a breach of the WHS Act , and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].…
Markarian v The Queen [2005] HCA 25
Citation 21 (Para 60)

…The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.…
R v Youkhana [2004] NSWCCA 412
Citation 22 (Para 96)

…sfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing). I am so satisfied.…
R v MA [2004] NSWCCA 92
Citation 23 (Para 71)

…I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and t…
Latoudis v Casey [1990] HCA 59
Citation 24 (Para 118)

…ing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).…
Veen v The Queen (No 2) [1988] HCA 14
Citation 25 (Para 65)

…not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 59)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 7)
Fines Act 1996 (NSW)
1 mention (from Para 107)
Work Health and Safety Act 2011 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	SafeWork NSW v Universal Propping & Supports Pty Limited [2023] NSWDC 348
Hearing dates:	23 August 2023
Date of orders:	1 September 2023
Decision date:	01 September 2023
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $400,000.00 and that will be reduced by 25% to reflect the plea of guilty. (3) That results in a fine of $300,000.00. (4) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine is to be reduced by 50%. (5) Accordingly, I order the defendant to pay a fine of $150,000.00. (6) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (7) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $30,000.00.
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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties – capacity to pay COSTS – prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health & Safety Regulation 2017 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 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 (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 v Karabelas(No 2) [2011] NSWIRComm 153 Jahandideh v R [2014] NSWCCA 178 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Rahme v R (1989) 43 A Crim R 81 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v Harris Holdings NSW Pty…