Safework NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685

District Court New South Wales

Medium Neutral Citation: Safework NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685 Hearing dates: 18 November 2019 Date of orders: 22 November 2019 Decision date: 22 November 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender 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 the offender to pay the prosecutor's costs as agreed or assessed. 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 from height over unprotected edge 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 (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 Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 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 4494 Temporary Edge Protection Formwork, Code of Practice 1998, WorkCover NSW General Guide for Formwork and Falsework, SafeWork Australia, July 2014 Guide to Formwork, SafeWork Australia, July 2014 Managing the Risk of Falls at Workplaces Code of Practice, April 2016 Category: Sentence Parties: SafeWork NSW (Prosecutor) Orbit Formwork Pty Ltd (Defendant) Representation: Counsel: P McEniery (Prosecutor) R Reitano (Defendant)