SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66 Hearing dates: 16/02/2018, 23/02/2018 Date of orders: 29 March 2018 Decision date: 29 March 2018 Before: Kearns DCJ Decision: The defendant is convicted. The defendant is fined the sum of $80,000 with a moiety to the prosecutor. The prosecutor is to pay the defendant's costs wasted by reason of the inclusion in the Summons and later withdrawal of the allegation relating to safe work method statement. Otherwise the defendant is to pay the prosecutor's costs. The orders for costs are that the party liable is to pay such costs as may be agreed or otherwise assessed.

Addendum 10 May 2018 - Pursuant to the slip rule the orders made in paragraph 79 of the judgment of this Court on 29 March 2018 are amended as follows: The defendant is to pay the prosecutor's costs (excluding the prosecutor's costs attributable to the inclusion in the summons and later withdrawal of the allegation relating to the safe work method statement), less any sum attributable to defendant's costs attributable to the withdrawn allegation. Catchwords: CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – fall from stairwell edge SENTENCE – objective seriousness – aggravating factor – general deterrence – specific deterrence – mitigating factors – attitude to safety before the incident – actions since the incident – Fines Act – parity – penalty – whether s 239 undertaking appropriate COSTS – amendments to Summons Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Crimes Act 1900 Cases Cited: Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; Page v Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312; SafeWork NSW v Karimbla Constructions Services NSW Pty Ltd [2017] NSWDC 68; Postigliano v The Queen (1996-7) 189 CLR 295; SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169; R v Ingrassia (1997) 41 NSWLR 447; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Butters v R [2010] NSWCCA 1 Category: Sentence Parties: SafeWork New South Wales (prosecutor); Freyssinet Australia Pty Ltd (defendant) Representation: Counsel: Mr I Taylor SC with Mrs E James appeared for the prosecutor; Mr A Moses SC with Mr D O'Neil and Ms J Alderson appeared for the defendant