SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472

SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472

The offender was convicted and fined because it had actual knowledge of the Australian Standards and the requirement for a 10-year major inspection of the building maintenance unit, knew or ought to have known that such an inspection was intended to identify defects in critical components capable of causing catastrophic failure, was informed that the inspection was due and overdue, and failed to act on that information. The foreseeable risk was of death or serious injury, the steps to eliminate it were simple and at no cost to the offender, and the failure caused serious permanent injuries to two workers. Although the offender had extensive safety systems and significant mitigating...

Jurisdiction
Australia
Judgment Date
19 August 2019
Procedural Posture
Criminal Prosecution for Offence Contrary to Section 32 Work Health and Safety Act 2011 / Sentence After Finding of Guilt After Trial
Outcome
The offender was convicted, fined $400,000, ordered to publish adverse publicity notices, and ordered to pay the prosecutor's costs of the proceedings; the prosecutor was ordered to pay the offender's costs of the interlocutory application.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'building Maintenance Unit' 'work at Heights' 'major Inspection' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating Factors' 'mitigating Factors' 'adverse Publicity Orders' 'costs']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'building Maintenance Unit' 'work at Heights' 'major Inspection' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating Factors' 'mitigating Factors' 'adverse Publicity Orders' 'costs']

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Procedural Posture

Criminal Prosecution for Offence Contrary to Section 32 Work Health and Safety Act 2011 / Sentence After Finding of Guilt After Trial

Legal Issues

  1. 1 ["What sentence should be imposed for the offender's contravention of section 32 of the Work Health and Safety Act 2011." 'Whether the offence involved substantial injury, harm and loss as an aggravating factor under section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.' 'What weight should be given to mitigating factors including no previous convictions, prospects of rehabilitation, cooperation with the SafeWork investigation and the conduct of the trial.' 'Whether parity with the sentence imposed on BMUS required a comparable penalty.' 'Whether an adverse publicity order should be made under sections 234, 235 and 236 of the Work Health and Safety Act 2011.' 'What costs orders should be made, including costs of the interlocutory application.']

Ratio Decidendi

The offender was convicted and fined because it had actual knowledge of the Australian Standards and the requirement for a 10-year major inspection of the building maintenance unit, knew or ought to have known that such an inspection was intended to identify defects in critical components capable of causing catastrophic failure, was informed that the inspection was due and overdue, and failed to act on that information. The foreseeable risk was of death or serious injury, the steps to eliminate it were simple and at no cost to the offender, and the failure caused serious permanent injuries to two workers. Although the offender had extensive safety systems and significant mitigating...

Court Disposition

The offender was convicted, fined $400,000, ordered to publish adverse publicity notices, and ordered to pay the prosecutor's costs of the proceedings; the prosecutor was ordered to pay the offender's costs of the interlocutory application.

Orders

  • ['The offender is convicted.' 'A fine of $400,000 is imposed.' 'Pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.' 'Adverse publicity orders are made requiring publication of the Notice set out in Annexure A in Facility Management Magazine, Facility Perspectives and INCLEAN...