Safework NSW v Proflow Plumbing and Maintenance Pty Limited [2019] NSWDC 593

Safework NSW v Proflow Plumbing and Maintenance Pty Limited [2019] NSWDC 593

The offender's failure to cover, fence, barricade or sign an excavated trench at the home of a nearly 91-year-old man exposed him to a readily foreseeable risk of death or serious injury, with catastrophic consequences and with simple, low-cost steps available to eliminate or minimise the risk. Its culpability was...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 October 2019
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Guilty Plea and Conviction
Outcome
The offender was convicted and fined $300,000 after a 25% discount for the guilty plea, with 50% of the fine payable to the prosecutor and prosecution costs ordered in the agreed amount of $26,400.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'excavation Work Risk Management' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty' 'victim Impact Statements' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'excavation Work Risk Management' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty' 'victim Impact Statements' 'prosecution Costs']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecution for Work Health and Safety Offence / Sentence After Guilty Plea and Conviction

Legal Issues

  1. 1 ["What penalty should be imposed for the offender's breach of its work health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (NSW) contrary to s 32 of the Act." "How serious the offender's culpability was in leaving an excavated trench uncovered and unbarricaded at the residence of an elderly resident." 'What aggravating and mitigating factors should be taken into account on sentence.' "Whether the offender's claimed limited capacity to pay should reduce the fine." 'Whether victim impact statements could be received and considered.' 'What costs order should be made.']

Ratio Decidendi

The offender's failure to cover, fence, barricade or sign an excavated trench at the home of a nearly 91-year-old man exposed him to a readily foreseeable risk of death or serious injury, with catastrophic consequences and with simple, low-cost steps available to eliminate or minimise the risk. Its culpability was in the mid range. Although mitigating factors including an early guilty plea, no prior convictions, good character, cooperation, low likelihood of reoffending and rehabilitation were accepted, remorse was not established and the offender did not discharge its onus to show limited capacity to pay. A fine of $400,000 was appropriate, reduced by 25% for the guilty plea to $300,000,...

Court Disposition

The offender was convicted and fined $300,000 after a 25% discount for the guilty plea, with 50% of the fine payable to the prosecutor and prosecution costs ordered in the agreed amount of $26,400.

Orders

  • ['The offender was convicted on 17 October 2019.' 'The appropriate fine is $400,000 but that will be reduced by 25% to reflect the plea of guilty.' 'Order the offender to pay a fine of $300,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' "Order the...