SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740 Hearing dates: 6 December 2019 Date of orders: 12 December 2019 Decision date: 12 December 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $60,000 but that will be reduced to $20,000 by reason of capacity to pay and further reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $15,000. (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 that each party is to pay its or his own costs. 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 – front end loader being used to lift heavy hydraulic cylinder – victim had unexpectedly placed himself under load and was adjusting slings – slings slipped off tines and cylinder fell 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 Mehan [2018] NSWDC 391 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Code of Practice: How to Manage Work Health and Safety Risks (December 2011) Code of Practice: Managing the risks of plant in the workplace code of practice (July 2014) SafeWork Australia: General Guide for Lifting Industrial Lift Trucks Information Sheet (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) Matthew Charles Colwell (Defendant) Representation: Counsel: D Jordan (Prosecutor) A Girle (solicitor) (Defendant)