SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44 Hearing dates: 17 February 2021 Date of orders: 5 March 2021 Decision date: 05 March 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the s 19 offence is $300,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $225,000.00. (4) The appropriate fine for the s 38 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty. (5) Accordingly, I order the defendant to pay a fine of $30,000.00. (6) The appropriate fine for the s 46 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty. (7) Accordingly, I order the defendant pay a fine of $30,000.00. (8) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. (9) I make no order as to 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 – totality of sentence - appropriate sentence - parity OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Home Building Act 1989 (NSW) Plumbing and Drainage Act 2011 (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) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [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 Jahandideh v R [2014] NSWCCA 178 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markaian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; (2004) 137 IR 310 at 224 Morrison v Powercoal Pty Limited & Anor (No 3) [2005] NSWIRComm 61 Orbit Drilling Pty Ltd v The Queen; Smith v R [2012] VSCA 82 Ostrowski v Palmer [2004] HCA 30 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v R (No 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 WorkCover Authority of NSW (Inspector Tyler) v P&D Coachworks Pty Ltd [2000] NSWIRComm 80 Texts Cited: SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces (2016) The Work Health and Safety Consultation, Cooperation and Coordination Code of Practice dated December 2011 Category: Sentence Parties: SafeWork NSW (Prosecutor) Easy Fall Guttering Pty Limited (Defendant) Representation: Counsel: Mr C Magee for the Prosecutor Mr D Chin SC and Mr M Diggins for the Defendant