SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443 Hearing dates: 24 August 2021 Date of orders: 27 August 2021 Decision date: 27 August 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Simos Scaffolding Pty Ltd was convicted on 24 August 2021. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Simos Scaffolding 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 Simos Scaffolding Pty Ltd to pay the prosecutor's costs agreed in the amount of $40,000. 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 was electrocuted after a 4.7-metre reo bar protruding from a scaffold deck over a plywood hoarding made contact with high voltage power lines – fitted hoarding was not an impenetrable barrier – high voltage power lines were visible from the scaffold deck – absence of electrical hazard warning signs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW), cl 166 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: AS/NZS 4576:1995 Guidelines for Scaffolding Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines, July 2014 Safe Work Australia, Scaffolding Work near Overhead Electric Lines Information Sheet, July 2014 WorkCover, Code of Practice – Work Near Overhead Power Lines (WorkCover of NSW Publication No. 1394) Category: Sentence Parties: SafeWork NSW (Prosecutor) Simos Scaffolding Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) R Coffey (Defendant)