SafeWork NSW v Cincram Group Pty Ltd [2022] NSWDC 613

SafeWork NSW v Cincram Group Pty Ltd [2022] NSWDC 613

Cincram's culpability was in the mid range because the risk to Mr Hu was foreseeable, specifically addressed by available guidance material, significant in likelihood, and carried potential consequences of death or serious injury; simple and effective measures were available without great burden or inconvenience, but Cincram's safety system failed to recognise or address the risks of unpacking elevated shipping containers. Although Cincram had mitigating factors including no prior conviction, good character, low risk of reoffending, remorse, cooperation and an early guilty plea warranting a 25% discount, it failed to discharge its evidentiary onus to justify reducing the penalty for lack...

Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Criminal Prosecution for Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty
Outcome
Cincram Group Pty Ltd convicted and fined $375,000 after a 25% discount for an early guilty plea; ordered to pay agreed prosecution costs of $47,500 and 50% of the fine to the prosecutor.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'unpacking Shipping Containers' 'failure to Take Reasonably Practicable Measures' 'objective Seriousness' 'aggravating and Mitigating Factors' 'early Plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'unpacking Shipping Containers' 'failure to Take Reasonably Practicable Measures' 'objective Seriousness' 'aggravating and Mitigating Factors' 'early Plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty

Legal Issues

  1. 1 ['Whether Cincram Group Pty Ltd failed to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), exposing Mr Chan Hu to a risk of death or serious injury contrary to s 32 of the Act.' 'What penalty should be imposed having regard to objective seriousness, foreseeability of risk, available reasonably practicable measures, injury caused, deterrence, mitigating factors, plea of guilty, cooperation, remorse and capacity to pay.' "Whether any reduction of penalty should be made because of Cincram Group Pty Ltd's asserted reduced capacity to pay."]

Ratio Decidendi

Cincram's culpability was in the mid range because the risk to Mr Hu was foreseeable, specifically addressed by available guidance material, significant in likelihood, and carried potential consequences of death or serious injury; simple and effective measures were available without great burden or inconvenience, but Cincram's safety system failed to recognise or address the risks of unpacking elevated shipping containers. Although Cincram had mitigating factors including no prior conviction, good character, low risk of reoffending, remorse, cooperation and an early guilty plea warranting a 25% discount, it failed to discharge its evidentiary onus to justify reducing the penalty for lack...

Court Disposition

Cincram Group Pty Ltd convicted and fined $375,000 after a 25% discount for an early guilty plea; ordered to pay agreed prosecution costs of $47,500 and 50% of the fine to the prosecutor.

Orders

  • ['Cincram Group Pty Ltd is convicted.' 'The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.' 'Order Cincram Group Pty Ltd to pay a fine of $375,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.'...