SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316 Hearing dates: 4 June 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $90,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor. (5) 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 a business – risk of death or serious injury SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition COSTS – prosecution costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Texts Cited: 1995 Guidelines for Scaffolding Australian Standard 2359: Powered Industrial Trucks (2013) General Guide for Scaffolds and Scaffolding Work in July 2014 Guide to Scaffold Inspection and Maintenance" dated July 2014 SafeWork NSW brief guide 'Toolbox Talk: Take Forklifting Safety Seriously' SafeWork NSW Code of Practice 'How to Manage Work, Health and Safety Risks' (December 2011) SafeWork NSW Code of Practice 'Managing the Risks of Plant in the Workplace' (July 2014) SafeWork NSW's Code of Practice Managing the Risk of Falls at Workplaces WorkCover Safety Alert 'Working with or around Mobile Plant' Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Hadcon Constructions Pty Ltd (Defendant) Representation: Counsel: Mr N Read appeared for the Prosecutor Mr M Cahill appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Bill Kritharas, Sparke Helmore (Defendant) File Number(s): 2018/00188693 Publication restriction: None