SafeWork NSW v MPMG FM Pty Limited [2018] NSWDC 377

SafeWork NSW v MPMG FM Pty Limited [2018] NSWDC 377

The offender's breach was objectively serious because workers were exposed to an obvious risk of death or serious injury from an improperly constructed mobile scaffold, were not properly instructed, were not provided all required scaffold parts, and were not provided an elevated work platform even though simple steps were available to eliminate the risk. The serious injuries sustained made the harm substantial, but mitigating factors including no previous convictions, good prospects of rehabilitation, remorse, cooperation and an early guilty plea justified a 25% discount from an appropriate fine of $120,000, resulting in a fine of $90,000.

Jurisdiction
Australia
Judgment Date
03 December 2018
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence Contrary to Section 32 of the Work Health and Safety Act 2011 / Sentence Following Plea of Guilty
Outcome
The offender was convicted and fined $90,000 after a 25% discount for the guilty plea, with 50% of the fine payable to the prosecutor and agreed prosecution costs of $40,000 ordered.
Legal Topics
['duty of Persons Undertaking Business' 'risk of Death or Serious Injury' 'painting Work at Heights' 'mobile Scaffold Safety' 'aggravating Factors' 'mitigating Factors' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Undertaking Business' 'risk of Death or Serious Injury' 'painting Work at Heights' 'mobile Scaffold Safety' 'aggravating Factors' 'mitigating Factors' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence Contrary to Section 32 of the Work Health and Safety Act 2011 / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ['Whether the offender failed to comply with its health and safety duty and exposed workers to a risk of death or serious injury.' 'Assessment of the objective seriousness of the work health and safety offence.' 'Whether substantial injury, harm and loss was an aggravating factor.' 'Assessment of mitigating factors including no previous convictions, prospects of rehabilitation, remorse, guilty plea and cooperation with SafeWork NSW.' 'Determination of the appropriate fine, guilty plea discount, prosecutor share of fine and costs.']

Ratio Decidendi

The offender's breach was objectively serious because workers were exposed to an obvious risk of death or serious injury from an improperly constructed mobile scaffold, were not properly instructed, were not provided all required scaffold parts, and were not provided an elevated work platform even though simple steps were available to eliminate the risk. The serious injuries sustained made the harm substantial, but mitigating factors including no previous convictions, good prospects of rehabilitation, remorse, cooperation and an early guilty plea justified a 25% discount from an appropriate fine of $120,000, resulting in a fine of $90,000.

Court Disposition

The offender was convicted and fined $90,000 after a 25% discount for the guilty plea, with 50% of the fine payable to the prosecutor and agreed prosecution costs of $40,000 ordered.

Orders

  • ['The offender is convicted.' 'The appropriate fine is $120,000 that will be reduced by 25% to reflect the plea of guilty.' 'I impose a fine of $90,000.' 'I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.' "The defendant is ordered to pay the prosecutor's costs...