Safe Work (NSW) v Activate Fire Australia Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd; Safe Work (NSW) v Hanna Plumbing Pty Ltd [2017] NSWDC 209

District Court New South Wales

Medium Neutral Citation: Safe Work (NSW) v Activate Fire Australia Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd; Safe Work (NSW) v Hanna Plumbing Pty Ltd [2017] NSWDC 209 Hearing dates: 8 June 2017 (Activate Pty Ltd and Hanna Plumbing Pty Ltd)21 June 2017 (Unity (NSW) Pty Ltd Date of orders: 14 August 2017 Decision date: 20 July 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: Penalty – Hanna Plumbing Pty Limited 1 The offender is convicted. 2 The appropriate fine is one of $5,000 that will be discounted by 15% to reflect the plea of guilty. 3 I impose a fine of $4,250. 4 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Penalty – Activate Fire Pty Australia Limited 5 The offender is convicted. 6 I impose a fine of $10,000. 7 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Penalty – Unity Pty Limited 8 The offender is convicted. 9 I impose a fine of $10,000. 10 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Costs 11 I order that Hanna Plumbing Pty Limited pay 85% of the prosecutor's costs as agreed or assessed on the ordinary basis. 12 I order that Activate Fire Pty Limited pay 50% of the prosecutor's costs as agreed or assessed on the ordinary basis. 13 I order that Unity Pty Limited pay 50% of the prosecutor's costs as agreed or assessed on the ordinary basis. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – labour hire – labour hire worker – supervision – safe work method statement – injury to employee SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – plea of guilty – finding of guilt following hearing – community values SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment - responsibility COSTS – prosecution costs – costs not to be used as form of penalty OTHER – sprinkler system – roof space – safety – appropriate assessment of workspace Legislation Cited: Work Health and Safety Act 2011 ss.19, 32 Work Health and Safety Regulations Cl.291 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 ss. 6, 122(2) Cases Cited: R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Jahandideh v R [2014] NSWCCA 178 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Category: Sentence Parties: Safe Work NSW (Prosecutor) Activate Fire Pty Ltd (Defendant) Dettmann Longworth Lawyers Unity NSW (Pty Ltd) (Defendant) Hanna Plumbing Pty Ltd (Defendant) Representation: Counsel: Mr M Moir (Prosecutor) Mr C O'Neil (Activate Fire Australia Pty Ltd) Mr C Magee (Unity NSW Pty Ltd) Mr R Rankin (Hanna Plumbing Pty Ltd)