Safework NSW v Kukas Brothers Pty Limited [2019] NSWDC 592

District Court New South Wales

Medium Neutral Citation: Safework NSW v Kukas Brothers Pty Limited [2019] NSWDC 592 Hearing dates: 17 October 2019 Date of orders: 24 October 2019 Decision date: 24 October 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $160,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $120,000. (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 agreed in the amount of $25,000. 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 – worker in pit required by supervisor to exit by riding in bucket of excavator – worker tipped out of bucket into pit – inadequate means of ingress to and egress from pit Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Occupational Health and Safety Act 2004 (Vic) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) 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 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Construction Work Code of Practice, July 2014 Excavation Work Code of Practice, July 2015 Managing the risks of falls at workplaces, April 2016 Category: Sentence Parties: SafeWork NSW (Prosecutor) Kukas Brothers Pty Limited (Defendant) Representation: Counsel: N. Read (Prosecutor) T. Hammond (Defendant)