SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343 Hearing dates: 22 August 2023 Date of orders: 31 August 2023 Decision date: 31 August 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Murray Constructions Pty Ltd was convicted on 2 August 2023. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Murray Constructions 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 Murray Constructions 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 – victim impact statements COSTS – prosecution costs OTHER – excavator bucket fell from trailer during unloading – worker fatally crushed and another injured – failure to require that loads be supported by or connected to plant prior to load restraint devices being released – failure to prohibit unlicensed persons from performing dogging duties during unloading operations Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43 Work Health & Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Sch 3, Sch 4 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Brzozowski v R [2023] NSWCCA 129 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 BSA Ltd (No. 2) [2023] NSWDC 73 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Safety Assist Publication, "Loading, Unloading, Exclusion Zones", November 2010 SafeWork Australia Code of Practice, "Managing Risks of Plant in the Workplace", August 2019 WorkCover NSW Code of Practice, "Moving Plant on Construction Sites", 2004 WorkCover NSW Fact Sheet, "Safe Unloading and Loading of Trucks for Bulky Goods Retailers", September 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Murray Constructions Pty Ltd (Defendant) Representation: Counsel: P J Gow (Prosecutor) R O'Neill (Defendant)