SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250 Hearing dates: 9 June 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Rockfield Contracting Pty Ltd is convicted. (2) Order Rockfield Contracting Pty Ltd to pay a fine of $250,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (4) Order Rockfield Contracting Pty Ltd to pay the prosecutor's costs. (5) 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 (to a limit of $15,000) 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 Paul Walsh was exposed to a risk of death or serious injury on 14 April 2016 ("the material date"); (ii) the risks to which Paul Walsh was 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 Paul Walsh was exposed on the material date as far as is reasonably practicable; (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 copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held jointly by SafeWork NSW and Rockfield Contracting Pty Ltd. (e) The video is to bear the logo of SafeWork NSW and the Waratah emblem of the State of New South Wales. (f) 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. (g) Liberty to restore the matter before the court if the parties wish to vary this order or 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 – Work Health and Safety project order COSTS — prosecution costs OTHER — drill string and drill head containing stored energy broke free from earth and struck a fatal blow to worker – no guidance material identifying the risk available – whether or not the likelihood of risk occurring was low – whether level of culpability is lower when risk is not generally known to industry Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238 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 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 Safework NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35. Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) Rockfield Contracting Pty Ltd (Defendant) Representation: Counsel: M Cahill (Prosecutor) M Shume (Defendant)