SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277 Hearing dates: 5 July 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The Owners – Strata Plan No 93899 was convicted on 5 July 2024. (2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order The Owners – Strata Plan No 93899 to pay a fine of $225,000. (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 The Owners – Strata Plan No 93899 to pay the prosecutor's costs agreed in the amount of $40,000. 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 – gate damaged by vehicle collision – worker subsequently fatally crushed by damaged gate which fell on him – failure to prevent manual operation of gate – failure to direct workers not to operate gate until replaced or repaired – failure to post signage instructing workers not to operate gate until replaced or repaired – failure to urgently repair gate – failure to conduct risk assessment – failure to remove gate from service 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 Strata Schemes Management Act 2015 (NSW), ss 8, 106 Work Health and Safety Act 2011 (NSW), ss 3, 20, 32 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 Maluko Pty Ltd [2023] NSWDC 274 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, August 2019 SafeWork NSW Code of Practice, Managing the Work Environment and Facilities, August 2019 WorkSafe Western Australia Safety Alert, Worker Crushed by Falling Gate, August 2018 Category: Sentence Parties: SafeWork NSW (Prosecutor) The Owners - Strata Plan No 93899 (Defendant) Representation: Counsel: M Moir (Prosecutor) N Read (Defendant)