Safework NSW v HCM Building Pty Limited [2019] NSWDC 632

District Court New South Wales

Medium Neutral Citation: Safework NSW v HCM Building Pty Limited [2019] NSWDC 632 Hearing dates: 1 November 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $135,000. (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 $35,000. 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 fell from ladder onto upright reo bars from which caps were missing – additional risk of fall from height because of lack of edge protection Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Occupational Health and Safety Act 1983 (NSW) 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 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 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: SafeWork NSW "Housing Industry Site Safety Pack" SafeWork South Australia's "Hazard Alert – Hazards of Reo Bars" WorkCover Code of Practice - Formwork 1998 WorkCover NSW Code of Practice "Managing the Risks of Falls at Workplaces" 2015 Category: Sentence Parties: SafeWork NSW (Prosecutor) HCM Building Pty Limited (Defendant) Representation: Counsel: D. Jordan (Prosecutor) N. Read (Defendant)