Citation: SafeWork NSW v Kayrouz Constructions Pty Limited (No. 2) [2021] NSWDC 38
Court: District Court of NSW
Date: 3 March 2021
Judge: Russell SC DCJ
Background
Kayrouz Constructions Pty Limited was the principal contractor on a residential building site in Kogarah. On 21 November 2016, a plumber working on the site was seriously injured when six-metre lengths of copper pipe, being manually lifted up the exterior of the building, came into contact with energised high-voltage overhead power lines.
SafeWork NSW charged Kayrouz with failing to comply with its work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty for such an offence is a fine of $1,500,000.
Kayrouz pleaded guilty on 11 November 2019, but the parties disputed which of the prosecutor's pleaded particulars of failure were established. The sentence hearing ultimately proceeded in February 2021, more than four years after the incident.
Legal Issues
- Whether the prosecution had proved, to the required standard, each of the particularised failures alleged in the summons
- The applicable standard of proof for contested facts at a sentencing hearing (beyond reasonable doubt for facts adverse to the accused; balance of probabilities for facts in the accused's favour)
- The objective seriousness of the offence and the weight to be given to mitigating and aggravating factors
- The appropriate fine, including the discount to be applied for the guilty plea
- Whether the defendant's capacity to pay was a relevant consideration
- How prosecution costs should be dealt with
Decision
The court applied the settled principle from R v Olbrich (1999) and subsequent High Court authority that facts adverse to an accused at sentencing must be proved beyond reasonable doubt, while facts favourable to the accused need only be established on the balance of probabilities. The court noted that the prosecution failed to prove some of the disputed particulars and specifically flagged that this was relevant to the question of costs.
Kayrouz admitted failing to comply with its duty in three respects: it did not prepare a safe work method statement identifying the overhead power line hazard; it did not provide adequate supervision to subcontractors to prevent them from carrying long materials near energised power lines; and it failed to implement a system ensuring it was notified of material deliveries and that workers received clear instructions about safely transporting those materials. The remaining particulars were contested, and the prosecution did not prove all of them to the required standard.
On objective seriousness, the court considered the nature and foreseeable risk of the hazard, the fact that some initial precautions and safety systems had been in place, and the gaps that emerged once scaffolding was removed and inexperienced, unsupervised workers were tasked with the pipe-lifting activity. Mitigating factors included the guilty plea. No submission was made about the defendant's capacity to pay, so that consideration did not arise.
The court assessed the appropriate fine at $80,000 before applying a 25 percent discount for the guilty plea, arriving at a final fine of $60,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine was directed to be paid to the prosecutor. The question of prosecution costs was reserved to allow the parties to consider the judgment, with a process set out for submissions if they could not agree.
Orders Made
- Kayrouz Constructions Pty Limited convicted of the offence
- Fine assessed at $80,000, reduced by 25% for the guilty plea to $60,000
- 50% of the fine ordered to be paid to the prosecutor (SafeWork NSW) pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Question of prosecution costs reserved
- If the parties could not agree on costs by 10 March 2021, each party directed to file written submissions by 17 March 2021, with costs to be determined on the papers
Key Takeaways
- At a sentencing hearing in a WHS prosecution, the standard of proof is not uniform: facts the prosecutor seeks to use adversely against the defendant must be established beyond reasonable doubt, while facts favourable to the defendant need only be proved on the balance of probabilities.
- Where a defendant challenges particulars of alleged failure pleaded in a summons, the prosecution must be prepared to prove those contested particulars to the criminal standard at the sentence hearing; failure to do so can affect both the assessment of objective seriousness and the question of costs.
- A guilty plea to a category 1 WHS offence does not automatically concede every particular of failure alleged in the summons; a defendant may still contest individual particulars and put the prosecutor to proof.
- The District Court confirmed that a defendant's capacity to pay is relevant but not decisive when fixing a fine under the Fines Act 1996 (NSW); however, where no submission on capacity is made, the issue does not arise.
- Under s 122(2) of the Fines Act 1996 (NSW), the court has power to direct that a proportion of a fine be paid to the prosecutor, and in this case directed that 50% of the $60,000 fine be paid to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2011 (NSW), cll 166, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
- Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
- Strbak v The Queen [2020] HCA 10
- Alameddine v R [2020] NSWCCA 232
- Cowling v R [2015] NSWCCA 213
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- SafeWork NSW v Kayrouz Constructions Pty Ltd [2020] NSWDC 77 (No. 1 decision)