SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417 Hearing dates: 29 September 2023 Date of orders: 16 October 2023 Decision date: 16 October 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) BSA Limited was convicted on 29 September 2023. (2) The appropriate fine is $600,000 but that will be reduced by 10% to reflect the early plea of guilty. (3) Order BSA Limited to pay a fine of $540,000. (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) Reserve all questions of costs. (6) Direct that costs be resolved by the following steps: (a) The defendant is to file and serve its written submissions on costs by 30 October 2023. (b) The prosecutor is to file and serve its written submissions on costs by 13 November 2023. (c) The defendant is to file and serve any written submissions in reply in relation to costs by 20 November 2023. (d) The parties are to inform my Associate by 27 November 2023 whether the issue of costs can be dealt with on the papers, or whether either party wishes to have a hearing date allocated for oral submissions in relation to 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 to parts of the Summons – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements OTHER – worker installing satellite dish and associated cabling – fatal electric shock following contact with live wire and earth wire underneath the house – failure to provide and maintain system of work – requiring lock or tag on main switch or meter box where technician required to isolate power – requiring use of volt stick – failure to provide adequate information, training, instruction and supervision concerning isolation of power, use of a lock or tag, use of a volt stick and conduct of an adequate risk assessment CAUSATION – relevant principles – findings of fact – whether acts of the defendant were a substantial or significant cause of the death – common sense approach – application of such a finding Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E 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 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 Campbell v The Queen [1981] W.A.R. 286 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Facenfield v R [2021] NSWCCA 128 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 AB [2011] NSWCCA 229 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Thompson and Houlton (2000) 49 NSWLR 383 R v Wilkinson (No. 5) [2009] NSWSC 432 Regina v Andrew [2000] NSWCCA 310 Regina v Katarzynski [2005] NSWCCA 72 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73 SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343 Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) BSA Limited (Defendant) Representation: Counsel: J Agius SC with B Docking (Prosecutor) A Moses SC with M Shume (Defendant)