SafeWork NSW v BSA Advanced Property Solutions (Fire) Pty Ltd [2022] NSWDC 634

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Advanced Property Solutions (Fire) Pty Ltd [2022] NSWDC 634 Hearing dates: 12 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) BSA Advanced Property Solutions (Fire) Pty Ltd is convicted. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay a fine of $450,000. (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 BSA Advanced Property Solutions (Fire) 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 COSTS – prosecution costs OTHER – defendant conducted a business or undertaking involving the installation of fire hydrant and sprinkler systems – sudden release of pressurised air caused explosion that ejected a test cap off the end of a pipe – test cap struck worker causing him fatal head injuries – failure to fit system with a means to release pressure or identify when the system is pressurised ­– failure to implement and enforce an adequate safe work method statement – failure to provide workers with training, information and instruction 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 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 Risks of Plant in the Workplace, August 2019 Victaulic, I-100 Field Installation Handbook Category: Sentence Parties: SafeWork NSW (Prosecutor) BSA Advanced Property Solutions (Fire) Pty Ltd (Defendant) Representation: Counsel: J Agius SC (Prosecutor) A Moses SC with M Shume (Defendant)