SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous [2018] NSWDC 350

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous [2018] NSWDC 350 Hearing dates: 22 October 2018 Date of orders: 23 November 2018 Decision date: 23 November 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: See [53] – [61] Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – duty of officers – risk of death or serious injury – death of employee SENTENCING – aggravating factors – mitigating factors – objective seriousness – general deterrence – specific deterrence – substantial harm, injury, loss or damage – no record of previous convictions – good prospects of rehabilitation – good character – plea of guilty – capacity to pay a fine SENTENCING PRINCIPLES – remorse WORK HEALTH AND SAFETY – simple risk control measures not implemented COSTS – prosecution costs OTHER – work at heights – replacement of asbestos roof sheeting – unsecured safety mesh – worker not wearing harness – worker fell through brittle roof onto concrete floor Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180] Environmental Protection Agency v Barnes [2006] NSWCCA 246 at [78] Jahandideh v R [2014] NSWCCA 178 at [16] R v Borkowski (2009) 195 A Crim R 1 at [32] R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 at [26] Category: Sentence Parties: SafeWork NSW (Prosecutor) Opcon Plumbing Pty Limited (Defendant) Houssam Annous (Defendant) Representation: Counsel: Mr B Docking (Prosecutor) Mr F Curran (Defendants)