SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442 Hearing dates: 23 August 2019 Date of orders: 29 August 2019 Decision date: 29 August 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In relation to proceedings 2016/57563:

(1) The offender is convicted. (2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $225,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor's costs.

In relation to proceedings 2016/57600:

(1) Summons withdrawn and dismissed. (2) No order as to costs. 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

COSTS - prosecution costs

OTHER – Scaffolding – insufficient ties and bracing to prevent instability and risk of collapse – no documented plan detailing bracing of the scaffold and dismantling of the scaffold – scaffold structure not reviewed by competent engineer – incomplete scaffolding – missing ties – missing bracing – missing handrails Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard AS/NZS 1576.1:2010 Scaffolding Part 1: General Requirements Australian Standard AS/NZS 4576.1995 Guidelines for scaffolding Erecting, altering and dismantling scaffold Part 1 Prefabricated steel modular scaffolding Industry Safety Standard - Erecting, altering and dismantling scaffold Part 1 Prefabricated steel modular scaffolding Category: Sentence Parties: SafeWork NSW (Prosecutor) Sydney Hoist and Scaffolding Pty Ltd (Defendant) Representation: Counsel: D Jordan (Prosecutor) M Johnston SC (Defendant)