SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144 Hearing dates: 2 May 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Metro Crane Services Pty Limited is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 10% to reflect the plea of guilty. (3) Order Metro Crane Services Pty Limited to pay a fine of $360,000. (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 Metro Crane Services Pty Limited 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 – fall from heights – worker performing dogman duties on roof – fell through fragile skylight to ground below – failure to conduct adequate risk assessment – failure to implement and monitor matters identified from risk assessment – failure to enquire about safety netting and skylight barriers or covers – failure to implement adequate system of supervision – failure to confirm workers had appropriate personal protective equipment – failure to confirm workers had appropriate safety training 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 Work Health and Safety Regulation 2017 (NSW), cl 78 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 Evolve Roofing Pty Ltd [2023] NSWDC 75 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Safe Work Australia Information Sheet, Safe Work on Roofs, January 2016 SafeWork NSW Code of Practice, Managing the Risks of Falls at Workplaces, August 2019 SafeWork NSW Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, 2009 SafeWork NSW Construction Falls from Heights Blitz Checklist Category: Sentence Parties: SafeWork NSW (Prosecutor) Metro Crane Services Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) T Kent (Defendant)