SafeWork NSW v MGK Constructions Pty Ltd [2019] NSWDC 518

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v MGK Constructions Pty Ltd [2019] NSWDC 518 Hearing dates: 18 September 2019 Date of orders: 23 September 2019 Decision date: 23 September 2019 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted. 2 I impose a fine of $75,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 The offender is to pay the prosecutor's costs, except for the costs of or incidental to the appearance on 20 September 2019, as agreed or assessed. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured

SENTENCING – objective seriousness – deterrence – mitigating factors – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – restoration order

WORK HEALTH and SAFETY – obvious risk – known to the offender – inadequate instructions – risk control measures available at low cost Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Interpretation Act 1987 Victims Rights and Support Act 2013 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Boland v Kentucky Fried Chicken Pty Ltd [2017] SAIRC 16 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Nash v Silver City Drilling [2017] NSWCCA 96 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 Wentworth Securities v Jones [1982] UKHL 5; [1980] AC 74 at 105-107 Texts Cited: Campbell "Compensation as Punishment" (1984) 7 UNSW Law Journal 338 Managing the Risk of Falls at Workplaces Preventing Falls in Housing Construction Category: Principal judgment Parties: SafeWork NSW (Prosecutor) MGK Constructions Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) N Read (Defendant)