SafeWork NSW v AKA Civil Australia Pty Limited; (No. 3) [2020] NSWDC 48

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v AKA Civil Australia Pty Limited; (No. 3) [2020] NSWDC 48 Hearing dates: 9 March 2020 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender AKA Civil Australia Pty Limited is convicted. (2) The appropriate fine is $200,000 but that will be reduced by 20% to reflect the plea of guilty. (3) Order the offender AKA Civil Australia Pty Limited to pay a fine of $160,000. (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 AKA Civil Australia Pty Limited to pay the prosecutor's 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 – collapse of brick wall during demolition work – bricks, scaffolding and power lines fell onto main road – no adequate risk assessment, demolition plan or supervision Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Occupational Health and Safety Regulation 2001 (NSW), cll 320, 325 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, Sch 18B 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: Australian Standard AS 2601-2001 "The Demolition of Structures" Safework NSW "Guide for applicants for demolition licences and notifications" (December 2015) NSW WorkCover "Demolition Code of Practice" (July 2015) Safework Australia "Managing the Risks of Plant in the Workplace" Code of Practice (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) AKA Civil Australia Pty Limited (Defendant) Representation: Counsel: T. Hammond (Prosecutor) S. McIntosh (Defendant)