SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141 Hearing dates: 18 April 2024 Date of orders: 1 May 2024 Decision date: 01 May 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Keks Projects Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Keks Projects 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 Keks Projects 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 – fall into an excavation – unsecured temporary fencing – fence gave way – failure to prevent access to exclusion zone – failure to install fence capable of withstanding force of person leaning or falling 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 Work Health and Safety Regulation 2017 (NSW) cll 78, 305 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW Code of Practice – Excavation Work, January 2020 SafeWork NSW Code of Practice – Managing the risk of falls at workplaces, August 2019 SafeWork NSW Code of Practice – Managing the risk of falls in housing construction, August 2019 Category: Sentence Parties: SafeWork NSW (Prosecutor) Keks Projects Pty Ltd (Defendant) Representation: Counsel: A Mykkeltvedt (Prosecutor) M Whitbread (Defendant)