SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454 Hearing dates: 30 September 2022 Date of orders: 7 October 2022 Decision date: 07 October 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In District Court proceedings 2021/134964 (s 19(1) Summons): (1) Technical Works Pty Ltd was convicted on 30 September 2022. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Technical Works 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 Technical Works Pty Ltd to pay the prosecutor's costs. In District Court proceedings 2021/134979 (s 19(2) Summons): (1) Technical Works Pty Ltd was convicted on 30 September 2022. (2) The appropriate fine is $20,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Technical Works Pty Ltd to pay a fine of $15,000. (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 Technical Works Pty Ltd to pay the prosecutor's costs. 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 - victim impact statement - totality COSTS – prosecution costs OTHER – defendant conducted a business or undertaking involving the management of construction projects – pack of formwork timbers fell from tower crane onto road and pedestrian footpath – timber struck the ground and ricocheted into worker – failure to maintain and enforce adequate exclusion zone – failure to develop, implement and maintain a lift plan for tower crane lifting operations – failure to provide information and instruction to workers – failure to provide warning signs to inform pedestrians – failure to provide traffic control to separate pedestrians from crane operations Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 33 Work Health and Safety Regulation 2017 cll 39, 54, 55, 314 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 Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 EPA v Barnes [2006] NSWCCA 246 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 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 Pearce v The Queen (1998) 194 CLR 610 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Elgas Ltd [2021] NSWDC 101 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, How to Manage Work Health and Safety Risks, December 2011 Safe Work Australia, General Guide for Cranes, December 2015 Work Cover NSW Code of Practice, Construction Work, July 2014 Australian Standard 2550.1-2011, Cranes, hoists and winches (Safe use) Category: Sentence Parties: SafeWork NSW (Prosecutor) Technical Works Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) C Magee (Defendant)