SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters [2021] NSWDC 632

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters [2021] NSWDC 632 Hearing dates: 19 November 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Penalty for Mirvale Pty Ltd (2021/00065542): (1) Mirvale Pty Ltd is convicted. (2) The appropriate fine is $65,000 but that will be reduced to $40,000 by reason of capacity to pay and further reduced by 25% to reflect the early plea of guilty. (3) Order Mirvale Pty Ltd to pay a fine of $30,000. (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 Mirvale Pty Ltd to pay the prosecutor's costs agreed amount of $39,900. Penalty for Ronald Ters (2021/00065552): (1) Ronald Ters is convicted. (2) The appropriate fine is $20,000 but that will be reduced to $12,000 by reason of capacity to pay and further reduced by 25% to reflect the early plea of guilty. (3) Order Ronald Ters to pay a fine of $9,000. (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 Ronald Ters to pay the prosecutor's costs agreed in the amount of $39,900. (6) The total costs payable to the prosecutor in proceedings 2021/00065542 and in these proceedings 2021/00065552 shall be $39,900. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – defendants involved in construction services – worker of subcontractor was painting the walls of a two-storey townhouse at defendant's project - worker fell three metres from the first floor through a void to the ground below and was seriously injured – void was unprotected Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 33 Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291, 299, 312 Cases Cited: 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 Ru Gong Li [2018] NSWDC 189 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW Code of Practice "Managing the Risk of Falls at Workplaces" dated April 2016 WorkCover Code of Practice "Preventing Falls in Housing Construction" dated July 2014 SafeWork NSW Safety Alert on "Voids in House Construction" dated April 2018 Category: Sentence Parties: SafeWork NSW (Prosecutor) Mirvale Pty Ltd (Defendant) Ronald Ters (Defendant) Representation: Counsel: I Fraser (Prosecutor) P Barham (Defendants)