SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2) [2022] NSWDC 201

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2) [2022] NSWDC 201 Hearing dates: 3 June 2022 Date of orders: 10 June 2022 Decision date: 10 June 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Arkwood (Gloucester) Pty Limited was convicted on 3 June 2022. (2) Order Arkwood (Gloucester) Pty Limited to pay a fine of $150,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (4) Order Arkwood (Gloucester) Pty Limited to pay the prosecutor's costs agreed in the amount of $102,000. 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 – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement

COSTS – prosecution costs OTHER — defendant engaged contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two workers employed by the defendant suffered electric shocks – failure to conduct a site-specific risk assessment – no appropriate SWMS – failure to adequately instruct and train employees – failure to observe and warn crane operator – failure to insist upon using a qualified dogman Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health & Safety Act 2011 (NSW), ss 3, 19, 32 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 Arkwood (Gloucester) Pty Limited [2022] NSWDC 89 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) Arkwood (Gloucester) Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) M Baroni (Defendant)