SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274

SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274

Maluko Pty Ltd breached its duty under s 19 of the Work Health and Safety Act 2011 (NSW), exposing workers to risk of death or serious injury over a continuing period, and in view of the increase in maximum penalty during the offence the new higher maximum is applicable. The objective seriousness is in the mid range; mitigating factors, including early guilty plea, good character, remorse, and cooperation, warrant a 25% reduction in fine; the penalty must aid general and specific deterrence.

Parties
Prosecutor: SafeWork NSW; Defendant: Maluko Pty Ltd
Jurisdiction
Australia
Judgment Date
26 July 2023
Procedural Posture
Criminal Prosecution / Sentencing
Outcome
Maluko Pty Ltd is convicted; fined with reduction for guilty plea; orders for payment of costs; proportion of fine to be paid to prosecutor; exhibits to be returned.
Legal Topics
Duty of Persons Undertaking Business, Risk of Death or Serious Injury, Maximum Penalty, Continuing Offence, General Deterrence, Specific Deterrence, Mitigating Factors, Aggravating Factors, Prosecution Costs
Criminal Law Work Health and Safety Law Duty of Persons Undertaking Business Risk of Death or Serious Injury Maximum Penalty Continuing Offence General Deterrence Specific Deterrence +3 more

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Parties

SafeWork NSW

Prosecutor

Maluko Pty Ltd

Defendant

Procedural Posture

Criminal Prosecution / Sentencing

Legal Issues

  1. 1 Whether Maluko Pty Ltd failed to comply with its work health and safety duty pursuant to s 19 of the WHS Act and thereby exposed a worker to risk of death or serious injury contrary to s 32 of the WHS Act
  2. 2 Determination of applicable maximum penalty for continuing offence spanning legislative increase
  3. 3 Assessment of objective seriousness and culpability

Ratio Decidendi

Maluko Pty Ltd breached its duty under s 19 of the Work Health and Safety Act 2011 (NSW), exposing workers to risk of death or serious injury over a continuing period, and in view of the increase in maximum penalty during the offence the new higher maximum is applicable. The objective seriousness is in the mid range; mitigating factors, including early guilty plea, good character, remorse, and cooperation, warrant a 25% reduction in fine; the penalty must aid general and specific deterrence.

Court Disposition

Maluko Pty Ltd is convicted; fined with reduction for guilty plea; orders for payment of costs; proportion of fine to be paid to prosecutor; exhibits to be returned.

Orders

  • Maluko Pty Ltd is convicted.
  • Maluko Pty Ltd to pay a fine of $375,000 reduced from $500,000 to reflect early guilty plea.