SafeWork NSW v Royal Demolition & Excavation Pty Limited [2020] NSWDC 598

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Royal Demolition & Excavation Pty Limited [2020] NSWDC 598 Hearing dates: 7 October 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Royal Demolition & Excavation Pty Limited is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 15% to reflect the plea of guilty. (3) Order Royal Demolition & Excavation Pty Limited to pay a fine of $204,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order Royal Demolition & Excavation Pty Limited to arrange for Mr El Masri to attend, within six months, a due diligence course conducted by a Registered Training Organisation, and provide written evidence to SafeWork NSW of the satisfactory completion of the course. (6) Order Royal Demolition & Excavation Pty Limited to pay the prosecutor's costs. 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 – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – offender engaged in demolition and ground levelling work – young labourer was run over by a reversing excavator while bent over – absence of an adequate risk assessment – failure to enforce an exclusion zone – inadequate worker supervision, instruction and training – failure to provide and enforce the use of high visibility personal protective equipment – non-compliance with an Improvement Notice Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155, 241 Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 36, 39 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork Australia, How to Manage Work Health and Safety Risks – Code of Practice (December 2011) WorkCover NSW, Managing the risks of plant in the workplace – Code of Practice (July 2014) WorkCover NSW, Excavation work – Code of Practice (July 2015) WorkCover NSW, Code of Practice for Moving Plant on Construction Sites (2004) Category: Sentence Parties: SafeWork NSW (Prosecutor) Royal Demolition & Excavation Pty Limited (Defendant) Representation: Counsel: T Hammond (Prosecutor) S Kassem (Solicitor) (Defendant)