SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2017] NSWDC 9

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Bustin' Free Earthworks Pty Ltd [2017] NSWDC 9 Hearing dates: 01 February 2017 Decision date: 02 February 2017 Jurisdiction: Criminal Before: Kearns DCJ Decision: The defendant is convicted and fined the sum of $90,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor's costs in an agreed sum of $15,000. Catchwords: CRIME – WORK HEALTH AND SAFETY - earthworks including excavation – labourer sub-contracted by the defendant – high risk construction work – entrapment - risk of workers suffering serious injury or death as a result of collapse of the trench walls – foreseeability – lower end of mid-range of seriousness – specific deterrence – general deterrence – guilty plea - discount Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Work Health and Safety Regulations 2011 Cases Cited: Inspector Christensen v Wadwell Group Pty Ltd [2012] NSWIRComm 126 Category: Sentence Parties: SafeWork NSW (Prosecutor); Bustin' Free Earthworks Pty Ltd (Defendant) Representation: Counsel: Mr David Jordan appeared for the Prosecutor; Mr R Reitano appeared for the defendant

Solicitors: Safework NSW Legal Services for the prosecutor; Messenger & Messenger for the defendant File Number(s): 2016/195844

Judgment

Charge and plea 1. Bustin' Free Earthworks Pty Ltd is charged that on 29 January 2015 at Hobson Close, Eglinton (the Site), contrary to s 32 of the Work Health and Safety Act 2011, it breached a duty imposed on it by s 19(1). It has pleaded guilty.

The evidence 1. The plaintiff tendered a bundle of documents that became Exhibit PX 1. 2. The defendant tendered a statement of Mr Young, Exhibit DX 1, and a bundle of documents, Exhibit DX 2. Mr Young was present in Court for the hearing and not required for cross-examination. 3. At this point I note that Mr Jordan, Counsel for the prosecutor, acknowledged that the defendant's evidence disclosed a strong subjective case in its favour.