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District Court 26 July 2023

SafeWork NSW v Maluko Pty Ltd

[2023] NSWDC 274

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
Court: District Court of New South Wales
Date: 26 July 2023
Judge: Russell SC DCJ

Background

Maluko Pty Ltd operated a building and concreting business at an industrial complex in Berkeley, NSW. On 4 June 2020, a vehicle struck and significantly damaged a gate at the site. From the following day, workers continued to open and close the gate manually, without any safe system of work in place for doing so.

On 12 June 2020, worker Jose Martins was fatally crushed by the damaged gate. Maluko pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to section 32. The charge was pleaded as a continuing offence spanning 5 June to 12 June 2020.

The prosecution, SafeWork NSW, and Maluko proceeded to a sentencing hearing. The key disputes concerned which maximum penalty applied, given that legislation increasing the penalty came into force mid-way through the offence period, and what fine was appropriate given Maluko's financial position.

  • Whether the offence was a continuing offence spanning 5 to 12 June 2020, or a single offence committed only on 12 June 2020
  • Whether the pre-10 June 2020 maximum penalty of $1,500,000 or the post-10 June 2020 maximum of $1,731,500 applied, in light of section 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The objective seriousness of the offence and the appropriate starting point for sentencing
  • The weight to be given to mitigating factors, including the early guilty plea, cooperation with authorities, and Maluko's limited financial capacity
  • The appropriate quantum of the fine

Decision

The nature of the offence. The court rejected the prosecutor's submission that the offence was committed only on 12 June 2020. SafeWork had itself pleaded the offence as a continuing one between 5 and 12 June, and Maluko's guilty plea admitted all matters in the Amended Summons. The Agreed Statement of Facts confirmed that multiple workers had manually operated the damaged gate throughout that week, and CCTV footage showed Mr Martins doing so on 9, 10 and 11 June as well as on the day he died.

Which maximum penalty applied. Because the offence began before 10 June 2020 (when the Amendment Act commenced and raised the maximum penalty), the court applied the principle that where a continuing offence straddles a change in penalty, the lower maximum applies unless the prosecution can establish that the offence, or a discrete part of it, was committed entirely within the higher-penalty period. The court held that the old maximum of $1,500,000 applied to this charge.

Objective seriousness. The court assessed the offence as occupying the low to moderate range of objective seriousness. Maluko had failed to direct workers not to manually operate the damaged gate, failed to put in place any provisional safe system of work, failed to develop a Safe Work Method Statement, failed to train workers, and failed to raise the issue with the site's Owners Corporation or strata manager. These were significant omissions, though the court noted there was no evidence that Maluko had been made aware before the fatality of the specific danger the damaged gate posed.

Mitigating factors and final penalty. The court applied a 25% discount for Maluko's early guilty plea and gave weight to its cooperation with authorities. Having regard to Maluko's modest size and profits under section 6 of the Fines Act 1996 (NSW), the court moderated the fine it would otherwise have imposed. The court set the appropriate fine at $500,000 before the plea discount, arriving at a final figure of $375,000. The court also ordered that 50% of the fine be paid to SafeWork NSW as prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW).

Orders Made

  • Maluko Pty Ltd convicted of the offence
  • Maluko Pty Ltd ordered to pay a fine of $375,000 (reduced from $500,000 by 25% for early guilty plea)
  • 50% of the fine to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996 (NSW)
  • Maluko Pty Ltd ordered to pay the prosecutor's agreed costs of $44,000
  • Exhibits returned

Key Takeaways

  • Where a prosecution pleads a continuing WHS offence spanning a statutory penalty increase, the court will hold the pleading to its terms: the lower maximum penalty applies unless the offence, or a severable part of it, falls entirely within the period of the higher penalty.
  • A guilty plea to a charge as pleaded binds the defendant to all matters alleged in that charge, including the date range of a continuing offence, and the sentencing court will not redraw the factual basis in the prosecution's favour where it contradicts the pleading.
  • The District Court confirmed that a defendant's financial capacity is a relevant but not decisive factor in setting a WHS fine; a substantial penalty may still be warranted for general deterrence even where the offender is a small business, though the court may moderate the quantum accordingly.
  • Under section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount for an early guilty plea remains available in WHS prosecutions in the District Court.
  • Cooperation with the prosecutor, including the prompt provision of documents, can be treated as a mitigating factor under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 242B
- Work Health and Safety Amendment (Review) Act 2020 (NSW), Sch 1 cl 19, Sch 2 cl 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Interpretation Act 1987 (NSW), s 55
- Strata Schemes Management Act 2015 (NSW), s 106

Cases
- Sloggett v Adams (1953) 70 WN (NSW) 206
- R v MAJW [2007] NSWCCA 145
- 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
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51