SafeWork NSW v LendLease Building Pty Limited [2018] NSWDC 99

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v LendLease Building Pty Limited [2018] NSWDC 99 Hearing dates: 6 April 2018 Date of orders: 20 April 2018 Decision date: 20 April 2018 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) Order the offender to pay a fine of $60,000. (3) Order that 50% of the fine is to be paid to the prosecutor. (4) Order the offender to pay the prosecutor's costs as agreed or assessed. (5) I note that the parties have agreed that the costs payable are in the amount of $34,483.79 and that such costs are payable within 28 days. 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 – parity – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs

OTHER – collision between forklift and worker – use of a spotter when vision 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: Baumer v R (1998) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145 Green v R [2011] HCA 49 Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125 Jahandideh v R [2014] NSWCCA 178 Jimmy v R (2010) 77 NSWLR 540 Markarian v R (2005) 228 CLR 357 Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 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 R v McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Veen v R (No. 2) (1998) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australian Standard AS2359.2-2013 Powered Industrial Trucks SafeWork NSW Safety Alert – Working with or around Mobile Plant (April 2013) WorkCover NSW Code of Practice - Moving Plant on Construction Sites (2004) WorkCover NSW Forklift Safety – Reducing the Risks (2010) Category: Sentence Parties: SafeWork NSW (prosecutor) LendLease Building Pty Limited (offender) Representation: Counsel: M Moir (prosecutor) B Hodgkinson SC (offender)