SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614 Hearing dates: 6 October 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) J & CG Constructions Pty Limited was convicted on 6 October 2020. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order J & CG Constructions Pty Limited to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order J & CG Constructions Pty Limited to pay the prosecutor's costs agreed in the amount of $48,000. 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 – fall from height over unprotected edge – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection – absence of exclusion zones to prevent or restrict access to risk areas – failure to ensure scaffolds, catch decks and adequate handrails were installed before incident – failure to use individual fall arrest systems prior to the incident Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2011, cll 78, 79, 300 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. 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 Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 Texts Cited: Australian Standard AS 4494, Temporary Edge Protection SafeWork Australia, Guide for Formwork and Falsework, July 2014 SafeWork Australia, Guide to Formwork, July 2014 SafeWork Australia, Managing the risk of falls at workplaces Code of Practice, April 2016 WorkCover NSW, Formwork, Code of Practice 1998 Category: Sentence Parties: SafeWork NSW (Prosecutor) J & CG Constructions Pty Limited (Defendant) Representation: Counsel: P McEniery (Prosecutor) M Shume (Defendant)