SafeWork NSW v Cincram Group Pty Ltd [2022] NSWDC 613

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Cincram Group Pty Ltd [2022] NSWDC 613 Hearing dates: 2 December 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Cincram Group Pty Ltd is convicted. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Cincram Group Pty Ltd to pay a fine of $375,000. (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 Cincram Group Pty Ltd to pay the prosecutor's costs agreed in the amount of $47,500. 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 unpacking stacks of pallets from an elevated shipping container – pallet jack used to move pallets within container – pallet shifted and pinned worker against forklift – worker fell from elevated position onto the ground and struck his head 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, 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 Meixing Jiang [2018] NSWDC 400 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 dated August 2019 SafeWork NSW Guide for Unpacking Shipping Containers dated October 2016 SafeWork NSW Video Safety Alert Unpacking Shipping Containers dated 26 April 2018 Category: Sentence Parties: SafeWork NSW (Prosecutor) Cincram Group Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) P Barry (Defendant)