SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters [2021] NSWDC 632

SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters [2021] NSWDC 632

Mirvale and Mr Ters were guilty of Category 3 offences involving a foreseeable risk of falling from height. The risk was known or foreseeable, the likely harm was serious, the likelihood of the risk occurring was high, and simple, well-known and not burdensome steps were available, including adequate edge protection, regular inspections, SWMS processes and site inductions. However, temporary balustrades had been installed and were removed by persons unknown, and both offenders had no prior convictions, showed remorse, cooperated, took remedial steps, had good rehabilitation prospects and had limited capacity to pay. Their culpability was therefore in the low range, warranting moderated...

Jurisdiction
Australia
Judgment Date
26 November 2021
Procedural Posture
Criminal Prosecution for Category 3 Work Health and Safety Offences / Sentence After Pleas of Guilty
Outcome
Mirvale Pty Ltd and Ronald Ters were convicted, fined and ordered to pay prosecution costs, with 50% of each fine to be paid to the prosecutor.
Legal Topics
['failure to Comply With Health and Safety Duty' 'duty of Person Conducting a Business or Undertaking' 'duty of Officers' 'risk of Falling From Height' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['failure to Comply With Health and Safety Duty' 'duty of Person Conducting a Business or Undertaking' 'duty of Officers' 'risk of Falling From Height' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for Category 3 Work Health and Safety Offences / Sentence After Pleas of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed on Mirvale Pty Ltd for contravening s 33 of the Work Health and Safety Act 2011 (NSW) after failing to comply with its duty under s 19 of that Act.' 'What penalty should be imposed on Ronald Ters for contravening s 33 of the Work Health and Safety Act 2011 (NSW) after failing to comply with his duty under s 27 of that Act.' 'How the objective seriousness and culpability of the offences should be assessed in light of the risk of falling from height and the available controls.' 'What mitigating and aggravating factors, including pleas of guilty, remorse, cooperation, prior record, rehabilitation prospects and capacity to pay, should affect sentence.' 'What costs orders should be made.']

Ratio Decidendi

Mirvale and Mr Ters were guilty of Category 3 offences involving a foreseeable risk of falling from height. The risk was known or foreseeable, the likely harm was serious, the likelihood of the risk occurring was high, and simple, well-known and not burdensome steps were available, including adequate edge protection, regular inspections, SWMS processes and site inductions. However, temporary balustrades had been installed and were removed by persons unknown, and both offenders had no prior convictions, showed remorse, cooperated, took remedial steps, had good rehabilitation prospects and had limited capacity to pay. Their culpability was therefore in the low range, warranting moderated...

Court Disposition

Mirvale Pty Ltd and Ronald Ters were convicted, fined and ordered to pay prosecution costs, with 50% of each fine to be paid to the prosecutor.

Orders

  • ['Mirvale Pty Ltd is convicted.' 'The appropriate fine for Mirvale Pty Ltd is $65,000 but that will be reduced to $40,000 by reason of capacity to pay and further reduced by 25% to reflect the early plea of guilty.' 'Mirvale Pty Ltd is ordered to pay a fine of $30,000.' "Pursuant to Section 122(2) of the Fines Act...