Beazley P at [1]; Basten JA at [2]; Wilson J at [116]
Decision:
(1) In the matter of Unity (NSW) Pty Ltd v SafeWork NSW (2016/77902-003) – dismiss the appeal.
(2) In each of the following appeals –
Attorney General (NSW) v Unity (NSW) Pty Ltd (2016/77902-004)
Attorney General (NSW) v Activate Fire Australia Pty Ltd (2016/77894)
Attorney General (NSW) v Hanna Plumbing Pty Ltd (2016/77856) –
dismiss the appeal.
Catchwords:
CRIME – conviction appeal – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury – whether defendant convicted of offence other than that particularised – whether measure to ensure health and safety particularised by prosecutor reasonably practicable – Work Health and Safety Act 2011 (NSW), ss 19, 32
EMPLOYMENT AND INDUSTRIAL LAW – industrial safety, health and welfare – worker suffered serious injuries following electrocution – defendants charged with failure to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – defendants convicted, but injuries suffered by worker not manifestation of risk pleaded – finding not challenged on appeal – whether trial judge erred in making finding of low objective seriousness – whether trial judge erred in failing to take injury of worker into account as aggravating factor – whether sentence manifestly inadequate – Work Health and Safety Act 2011 (NSW), ss 19, 32
SENTENCING – aggravating factors – substantial harm, injury, loss or damage – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – where worker’s injury would not have occurred had defendants taken measures which should have been taken – whether worker’s injuries should be taken into account as aggravating factor in sentencing
SENTENCING – prosecution appeal – residual discretion – delay – appeal lodged more than eight months after orders entered –internal bureaucratic processes relied upon as justification for delay –whether defendants suffered prejudice as a result of delay – relevance of defendants being corporate entities rather than natural persons – whether delay engaged discretion not to intervene
SENTENCING – prosecution appeal – mitigating factors – remorse – prosecutor contended defendant was sympathetic but not remorseful – remorse insufficient to establish mitigating factor under Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(3)(i) – whether trial judge erred by taking remorse into account
[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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AGLC
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Case
[2018] NSWCCA 266
Decision Date
CaseChat Overview and Summary
Unity Pty Limited and SafeWork NSW were involved in a legal dispute that was brought before the court. The case involved allegations that the defendants failed to ensure the health and safety of workers by exposing an individual to a risk of death or serious injury. The defendants were convicted under the Work Health and Safety Act 2011 (NSW) and subsequently appealed their conviction. The key legal issues before the court were whether the defendants were convicted of an offence other than the one particularised, whether the measures to ensure health and safety proposed by the prosecutor were reasonably practicable, and the appropriateness of the sentence imposed.
The court examined whether the trial judge erred in making a finding of low objective seriousness and whether the trial judge erred in failing to take into account the injury suffered by the worker as an aggravating factor. The court also considered whether the sentence was manifestly inadequate. Additionally, the court addressed the issue of whether the defendants' injuries should be taken into account as an aggravating factor in sentencing, given that these injuries would not have occurred if the defendants had taken the necessary measures.
The court found that the trial judge did not err in making a finding of low objective seriousness, as the risk pleaded did not manifest in the injuries suffered by the worker. The court also held that the trial judge did not err in failing to take the worker's injury into account as an aggravating factor because the injury was not a manifestation of the risk pleaded. Furthermore, the court determined that the sentence was not manifestly inadequate. In terms of the prosecution's appeal, the court found that the delay in lodging the appeal did not engage the court's discretion not to intervene, as the internal bureaucratic processes were sufficient justification. The court also held that the defendants' status as corporate entities did not preclude the appeal from being considered. Finally, the court found that the defendants were not remorseful in a manner that would constitute a mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW).