SafeWork NSW v WY Constructions Pty Ltd [2020] NSWDC 746

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v WY Constructions Pty Ltd [2020] NSWDC 746 Hearing dates: 4 December 2020 Date of orders: 11 December 2020 Decision date: 11 December 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) WY Constructions Pty Ltd is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order WY Constructions Pty Ltd to pay a fine of $300,000. (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 WY Constructions Pty Ltd to pay the prosecutor's costs. (6) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW): (a) Within six months of the date of these Orders, the defendant is to undertake and fund the development and production of a de-identified educative animated video (the project) by a suitable external provider (the provider) that documents, illustrates and highlights: (i) the incident in which Gui Ying Xie, Wei Huang Wang, Han Ming Cao were exposed to a risk of death or serious injury on 16 December 2017 (the material date); (ii) the risks to which the persons were exposed on the material date; (iii) the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Gui Ying Xie, Wei Huang Wang, Han Ming Cao were exposed on the material date as far as is reasonably practicable; (iv) the guidance material applicable to the demolition of brick structures as deemed appropriate by SafeWork NSW. (b) The management of the project and the provider will be undertaken by SafeWork NSW. (c) The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider. (d) The defendant is to agree that the copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held exclusively by SafeWork NSW. (e) The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service. (f) Liberty to restore the matter before the Court if the defendant does not comply with this order. 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 – worker struck and crushed by a masonry chimney that fell on her during demolition works ̶ failure to comply with the relevant demolition procedures – absence of a risk assessment or Safe Work Method Statement – failure to develop an exclusion zone – failure to provide workers with proper instruction, training or information regarding demolition work – lack of personal protective equipment – workers involved in demolition works had no prior demolition work experience – failure to request copies of contractors' demolition licences – failure to implement or enforce a demolition plan Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Environmental Planning and Assessment Regulations 2000 (NSW), cl 129B Fines Act 1996 (NSW), ss 6, 122 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), Sch 9 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 235, 238 Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38,142, 292, 293, 299, 309 Cases Cited: Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319 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 Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 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 WorkCover Authority of New South Wales v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 Texts Cited: Australian Standard 2601–2001: The demolition of structures, September 2001 SafeWork NSW, Code of Practice: Demolition Work, September 2016 Category: Sentence Parties: SafeWork NSW (Prosecutor) WY Constructions Pty Ltd (Defendant) Representation: Counsel: C Magee (Prosecutor) M Shume (Defendant)