SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited [2017] NSWDC 365

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited [2017] NSWDC 365 Hearing dates: 11 and 15 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Criminal Before: Judge D. Russell Decision: (1) The offender is convicted. (2) Order the offender to pay a fine of $90,000. (3) Order that 50% of the fine is to be paid to the prosecutor. (4) Order the offender to pay the prosecutor's costs agreed in the amount of $37,000. 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 – appropriate penalty

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs

OTHER – forklift – need for operator to be licensed – need for a spotter when view of operator is obscured Legislation Cited: Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Regulation 2011 Cases Cited: Veen v R (No. 2) (1998) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No. 5) [2009] NSWSC 432 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 Jahandideh v R [2014] NSWCCA 178 Texts Cited: Australian Standard AS2359.2-2013 Powered Industrial Trucks WorkCover NSW Moving Plant on Construction Sites Code of Practice SafeWork NSW Forklift safety – reducing the risks SafeWork NSW Safety Alert – Working with or around mobile plant Category: Sentence Parties: SafeWork NSW Erect Safe Scaffolding (NSW) Pty Limited Representation: Counsel: M Moir (prosecutor) R Moore (defendant)