SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205

SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205

The defendant, as a person conducting a business or undertaking, failed on occasions between 2014 and 2021 to ensure, so far as was reasonably practicable, the health and safety of workers by not adequately controlling exposure to respirable crystalline silica, contrary to s 33 of the Work Health and Safety Act 2011 (NSW); the offence was objectively serious given the foreseeability and gravity of the risk, the ready availability of control measures, and the defendant's failures in monitoring, instruction, and protective protocols. The early plea of guilty and remedial actions warranted a 25% discount, resulting in conviction and a $75,000 fine plus payment of prosecutor's costs.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Criminal / Sentencing—conviction and Penalty After Guilty Plea
Outcome
Conviction and sentence—fine imposed, plus costs
Legal Topics
['duty of Persons Undertaking Business' 'workplace Exposure Standards' 'sentencing—objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'general Deterrence' 'specific Deterrence' "prosecutor's Costs"]
['criminal Law' 'work Health and Safety Law'] ['duty of Persons Undertaking Business' 'workplace Exposure Standards' 'sentencing—objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'general Deterrence' 'specific Deterrence' "prosecutor's Costs"]

Case Brief

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Procedural Posture

Criminal / Sentencing—conviction and Penalty After Guilty Plea

Legal Issues

  1. 1 ['Whether the defendant failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers by exposing them to respirable crystalline silica above workplace exposure standards' 'Assessment of objective seriousness and appropriate penalty']

Ratio Decidendi

The defendant, as a person conducting a business or undertaking, failed on occasions between 2014 and 2021 to ensure, so far as was reasonably practicable, the health and safety of workers by not adequately controlling exposure to respirable crystalline silica, contrary to s 33 of the Work Health and Safety Act 2011 (NSW); the offence was objectively serious given the foreseeability and gravity of the risk, the ready availability of control measures, and the defendant's failures in monitoring, instruction, and protective protocols. The early plea of guilty and remedial actions warranted a 25% discount, resulting in conviction and a $75,000 fine plus payment of prosecutor's costs.

Court Disposition

Conviction and sentence—fine imposed, plus costs

Orders

  • ['The defendant is convicted.' 'The appropriate fine is $100,000, reduced by 25% for the guilty plea.' 'The defendant to pay a fine of $75,000.' 'Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of fine to be paid to prosecutor.' "Pursuant to s 257B Criminal Procedure Act 1986 (NSW), defendant to pay prosecutor's...