SafeWork NSW v Apex Building Systems Pty Ltd [2023] NSWDC 14

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Apex Building Systems Pty Ltd [2023] NSWDC 14 Hearing dates: 31 January 2023 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Apex Building Systems Pty Ltd was convicted on 31 January 2023. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Apex Building Systems Pty Ltd to pay a fine of $180,000. (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 Apex Building Systems 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 was a construction company engaged as principal contractor – failure to carry out a risk assessment in relation to working from height – failure to mandate an appropriate and safe system of work – failure to properly supervise subcontractor Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW), ss 78, 79, 291, 292, 309, 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 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 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 Greater Civil Pty Limited [2022] NSWDC 486 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Van Can Ha v R [2008] NSWCCA 141 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW Code of Practice Construction Work dated May 2018 SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces dated August 2019 Category: Sentence Parties: SafeWork NSW (Prosecutor) Apex Building Systems Pty Ltd (Defendant) Representation: Counsel: M Cahill (Prosecutor) E James (Defendant)