SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565 Hearing dates: 30 July 2024 Date of orders: 2 December 2024 Decision date: 02 December 2024 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) In each proceedings, Modco Homes Pty Ltd is convicted. (2) The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (4) The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (5) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (6) The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty. (7) Accordingly, in that matter, I order the defendant to pay a fine of $60,000. (8) The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (9) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (10) The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (11) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (12) The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty. (13) Accordingly, in that matter, I order the defendant to pay a fine of $15,000. (14) In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. (15) In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. Catchwords: CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 31, 32, 35, 37, 38, 39 Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 Texts Cited: SafeWork NSW Code of Practice – Managing the Risk of Falls at Workplaces, August 2019 Category: Sentence Parties: SafeWork NSW (Prosecutor) Modco Homes Pty Ltd (Defendant) Representation: Counsel: M Scott (Prosecutor) S McIntosh (Defendant)