SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191 Hearing dates: 28 April 2021 Date of orders: 21 May 2021 Decision date: 21 May 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $450,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant is to pay the prosecutor's costs agreed in the sum of $43,413.26. 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) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Concrite Site Specific HSE Induction F001 Diesel Bulk Pump Delivery General Guide for Traffic Management How to Manage Work Health and Safety Risk (December 2011) HSEQ 7-09 Traffic Management Protocol SafeWork NSW Code of Practice Managing Risks of Plant in the Workplace Traffic Control Measures Checklist Traffic Hazard Checklist Workplace Traffic Management Information Sheet' Category: Sentence Parties: SafeWork NSW (Prosecutor) Concrite Pty Ltd (Defendant) Representation: Mr N Read, of counsel for the Prosecutor Mr B Hodgkinson SC, for the Defendant