Safework NSW v Emu Group Pty Limited [2019] NSWDC 537

District Court New South Wales

Medium Neutral Citation: Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 Hearing dates: 2 October 2019 Date of orders: 04 October 2019 Decision date: 04 October 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Emu Group Pty Limited was convicted on 2 October 2019. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Emu Group Pty Limited to pay a fine of $180,000. (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 Emu Group Pty Limited to pay the prosecutor's costs agreed in the amount of $24,000. 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 – fall through unprotected void on construction site Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 Cases Cited: 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 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 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 Safework NSW v Ru Dong Li [2018] NSWDC 189 Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 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/New Zealand Standard 1576.1:2010 Scaffolding, Part 1: General Requirements Managing the Risk of Falls at Workplaces (March 2015) Managing the Risk of Falls at Workplaces Code of Practice (April 2016) Category: Sentence Parties: SafeWork NSW (Prosecutor) Emu Group Pty Limited (Defendant) Representation: Counsel: T Hammond (Prosecutor) M Scott (Defendant)