SafeWork NSW v Austar Construction Pty Ltd [2023] NSWDC 289

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Austar Construction Pty Ltd [2023] NSWDC 289 Hearing dates: 24 July 2023 Date of orders: 01 August 2023 Decision date: 01 August 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Austar Construction Pty Ltd is convicted. 2 I impose a fine of $150,000. 3 The offender is to pay the prosecutor's costs as agreed or assessed. 4 I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: SafeWork NSW (Prosecutor) Austar Construction Pty Ltd (Defendant) Representation: Counsel: E Kerkyasharian (Prosecutor) W Thompson (Defendant)