SafeWork NSW v All Cranes 4 Hire Pty Ltd [2020] NSWDC 738

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v All Cranes 4 Hire Pty Ltd [2020] NSWDC 738 Hearing dates: 19 November 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) All Cranes 4 Hire Pty Ltd is convicted. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order All Cranes 4 Hire Pty Ltd to pay a fine of $150,000. (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 All Cranes 4 Hire Pty Ltd to pay the prosecutor's costs agreed in the amount of $32,500. 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 – unsecured load fell on workers while being lifted by a crane ̶ absence of exclusion zone ̶ failure to provide sub-contracted workers with proper instruction, training or information regarding safely working near a crane ̶ failure to implement existing Safe Work Method Statement Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19(2), 32 Work Health and Safety Regulation 2017 (NSW), ss 34, 35, 36, 37, 38 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: Australian Standard 2550.1.11: Crane, hoists and winches – Safe Use (March 2011) WorkCover NSW, Code of Practice: Construction Work (July 2014) Safe Work Australia, Falling Objects Fact Sheet (February 2012) SafeWork NSW, Code of Practice: How to manage work health and safety risks (December 2011) Category: Sentence Parties: SafeWork NSW (Prosecutor) All Cranes Hire Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) C Magee (Defendant)