SafeWork NSW v 465 Leichhardt Pty Ltd

[2025] NSWIC 5

Industrial Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v 465 Leichhardt Pty Ltd [2025] NSWIC 5

Hearing dates:

29 May 2025

Date of orders:

02 July 2025

Decision date:

02 July 2025

Before:

Taylor J, President

Decision:

(1)   I impose a fine on 465 Leichhardt Pty Ltd of $180,000.

(2)   465 Leichhardt Pty Ltd is to pay the prosecutor’s costs of the proceedings in the amount of $42,762.77 as agreed.

(3) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Low to mid-range of objective seriousness

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 23, 30E

Fines Act 1996 (NSW), s 122

Work Health and Safety Act 2011 (NSW), ss 20, 32

Cases Cited:

Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Cartwright (1989) 17 NSWLR 243

R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Ceerose Pty Ltd [2017] NSWDC 313

SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360

SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4

SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274

SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277

Texts Cited:

Australian Standard AS 2601-2001 “The Demolition of Structures”

SafeWork NSW, “Code of Practice: Demolition Work” (August 2019)

SafeWork NSW, “Code of Practice: Managing the Work Environment and Facilities” (August 2019)

SafeWork NSW, “Industrial gate fatality – 12 June 2020” (Incident information release, 27 August 2020)

WorkSafe Western Australia, Safety Alert 08/2018 (August 2018)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
465 Leichhardt Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
B Clark (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)

File Number(s):

2024/320298

Publication restriction:

Pursuant to the order of Taylor J, President made on 29 May 2025 and s 164A of the Industrial Relations Act 1996 (NSW), there is to be no publication of the names and other identifying details of the four victims in these proceedings.

JUDGMENT

1. On 2 September 2022 a woman and her three young children were walking home along a footpath on Parramatta Road, Leichardt when a 200-kilogram sliding gate (Gate) was opened, overran its supports and fell onto them, causing them to be injured.

2. SafeWork NSW as the prosecutor instituted proceedings against the company that had arranged for the Gate to be installed, 465 Leichhardt Pty Ltd, the defendant in these proceedings. The defendant subsequently entered a plea of guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act), namely that it failed to comply with its duty pursuant to s 20(2) of the WHS Act to ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person by exposing the woman and her three children to a risk of serious injury.

3. The nature of the risk to which the defendant pleaded guilty was:

“10. … the risk to persons in the vicinity of the Gate, in particular [the primary victim] and her three children, suffering death or serious injury as a result of being struck by the Gate falling on them.”

4. The defendant by its plea accepted there were reasonably practicable steps that it failed to take that would have eliminated or minimised the risk arising. The particulars to which it pleaded guilty were:

“a) Undertaking a workplace inspection of the Site which identified hazards associated with the Gate, including hazards arising from the manual operation of the Gate due to the absence of a Gate motor, the lack of physical end stops on the metal track of the Gate, the lack of a stopper post at the end of the track, the inadequately fitted metal track, and the loosely fitted guide rollers;

b) Conducting a risk assessment to identify that the Gate presented a risk to members of the public using the footpath, and to workers manually opening and closing the Gate to access the Site, and to identify the control measures to be implemented to manage the risk, including the measures set out below;

c) Providing and installing, or arranging for a competent person to provide and install, an adequate physical stop at the end of the metal track to prevent the Gate from overrunning past its guide rollers;

d) Providing and fitting, or arranging for a competent person to provide and fit, to the Gate an adequate stop mechanism at the top and/or bottom of the Gate to prevent the Gate from overrunning past its guide rollers;

e) Providing and installing, or arranging for a competent person to provide and install, a stopper post at the end of the metal track of the Gate to prevent the Gate from overrunning past its guide rollers;

f) Erecting hoarding, or security fencing, with an inward-opening Gate along the full length of the Site adjoining the external footpath;

g) Installing an inward-opening gate which opened into the Site instead of one opening upon or immediately next to the external footpath;

h) Taking the Gate immediately out of service unless an adequate physical end stop and/or end post was installed at the end of the metal track to prevent the Gate from overrunning past its rollers;

i) Prohibiting the Gate from being touched, and keeping it open and unlocked so as to allow access to the Site, pending installation of an adequate physical stop and/or stop post at the end of the metal track;

j) Placing signage on or near the Gate to warn persons in its vicinity of the risk that the Gate might fall.

k) Developing and implementing a safe work method statement or safe work procedure for the safe operation or use, inspection and maintenance of the Gate.”

5. When the parties came before me on 29 May 2025 for the sentencing hearing, I convicted the defendant on the basis of agreed facts. This decision concerns the penalty to be imposed.

6. The woman and her children who were injured are not identified in this decision consistent with a non-publication order made at the hearing. I will refer to her as the primary victim.

Further Facts

7. The defendant was engaged by Premier Construction Capital Pty Ltd, the principal contractor, in respect of demolition and construction work at 465 Parramatta Road, Leichhardt, New South Wales (the Site). At all material times the Site was under the management and control of the defendant.

8. The Site was in the process of being redeveloped. There was a driveway leading to the Site and its entrance was situated on the public footpath on Parramatta Road.

9. The defendant engaged Star Professional All Metal Work Pty Ltd (Star Professional) to manufacture, supply and install the Gate at that entrance for a cost of $5,000. Star Professional is the subject of separate proceedings instituted by the prosecutor arising out of the same incident that are not concluded.

10. The Gate was installed across the driveway entrance on or about 18 June 2022. It was 2.4 meters high and 5 meters wide, made from 76mm steel tubing and weighed approximately 200 kilograms.

11. The Gate could only be opened and closed manually, rolling sideways along the building side of the footpath. It moved on wheels along a metal track, guided by two rollers. The rollers were loose, and the track was poorly secured to the uneven ground. Importantly, it lacked an end stop at the end where the gate was fully opened. Instead of a fixed end stop, a small piece of angled iron was welded to the top of the Gate which was intended to prevent the Gate overrunning the track. The angled iron had been poorly designed or installed such that it did not contact the horizontal metal bar and so was ineffective. As a result, there was nothing to stop the Gate when opened being pushed beyond the end of the metal tracks at which point it would no longer be supported.

Incident

12. On 2 September 2022, a scaffold worker parked his utility truck across the footpath in front of the Gate to collect mobile scaffold components from the Site.

13. The primary victim and her three children, aged 6, 4 and 3, were walking home along Parramatta Road and found their way blocked by the ute. Seeing that they wanted to pass, the scaffold worker pushed open the Gate to enable him to drive the ute into the Site.

14. Having pushed it open, the 200-kilogram Gate travelled past the point where the angled metal was supposed to stop it, overran its supports and fell onto the primary victim and her three children who were trapped underneath the fallen Gate until passers-by lifted it off them.

Injuries

15. The primary victim sustained compound fractures to her left tibia and fibula, requiring open reduction and internal fixation surgery. She also suffered bruising from her right shoulder to elbow and her hips. It was also an agreed fact that she says she experienced ongoing anxiety when walking past the Site. She has been receiving counselling including as to ways to help the children deal with their trauma from the incident.

16. Her 6-year-old daughter sustained bruising and a minor head injury and was admitted to hospital for observation. Her second child suffered a laceration to the right lip and also bruising. Her third child also suffered bruising.

Nature of the defendant

17. The defendant described itself as a small husband and wife company. Amanda Jane Eleter was the sole director and secretary of the defendant and her spouse George Eleter was the manager of the defendant and its business.

Knowledge of the defendant

18. On the agreed facts in this matter, the Gate was inadequately designed and installed, since it did not have any means of ensuring that it could not be opened in a manner that would prevent it overrunning the end point of the metal track.

19. The prosecutor did not allege that the defendant was aware of the design flaw prior to the incident. The defendant led uncontested evidence that no such flaw had come to the attention of the Eleters in the two and a half months that the Gate had been in use.

20. Had the defendant known of the flaw and done nothing to address it, that would have significantly increased the culpability of the offence. However, the fact that the defendant did not know of the flaw serves to emphasise the defendant’s primary failure: the defendant did not know because it had not taken the basic step of inspecting the Gate after installation. If the defendant had taken that step, consistent with its statutory duty, it would have discovered that there was nothing preventing the Gate from being opened beyond the point where it could be supported.

Guidance material

21. Had the defendant sought to look for it, there was ample guidance material available at the time of the incident:

1. “Code of Practice: Demolition Work”, published by SafeWork NSW on August 2019, specifically Pt 2 on the risk management process;

2. Australian Standard AS 2601-2001 “The Demolition of Structures”, specifically at cl 1.5.1.5 providing that where the demolition site adjoins a public thoroughfare, the common boundary between them shall be fenced for its full length with a hoarding, unless the least horizontal distance between the common boundary and the nearest parts of the structure is greater than the height of the structure. It further provides that the hoarding shall be constructed of solid materials to a height of not less than 1.8 metres adjacent to the thoroughfare;

3. “Code of Practice: Managing the Work Environment and Facilities”, published by SafeWork NSW on August 2019;

4. Safety Alert 08/2018, published by WorkSafe Western Australia in August 2018, providing that where an incident occurs resulting in damage to a gate or where a gate is not working correctly, the gate should immediately be tagged-out; and

After the incident

22. After the incident, SafeWork NSW issued a prohibition notice which required the defendant to cease operation and use of the Gate. It is an agreed fact that the Gate was subsequently removed and temporary fencing installed at the Site.

23. The defendant informed the Court that a hoarding has been placed across the entrance and that no further building activity has been carried out on the Site since the incident. Since the incident it has taken steps to put in place appropriate workplace health and safety systems and arranged appropriate inspections to identify any potential hazards or risks when work recommences, through its Project Manager Mr Patrick Sprych.

Consideration

24. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843.05).

Objective seriousness

25. The principles to be applied in determining objective seriousness are helpfully set out by Paingakulam J in SafeWork NSW v Hibernian Contracting Pty Ltd,[1] and can be summarised as follows:

    1. [2025] NSWIC 4 at [52]-[60].

1. That having regard to the objective circumstances, the sentence should be proportionate to the gravity of the crime;

2. Objective seriousness is to be determined by reference to the nature of the offending and not matters personal to the offender;

3. The conduct that should be taken into consideration should extend not only to the conduct which constituted the crime but also the surrounding circumstances that were directly related to that crime and could be regarded as circumstances of aggravation and mitigation;

4. The reasonably foreseeable risk to safety that is likely to result in serious injury or death should be determined objectively and is a factor relative to the gravity of the offence;

5. The appropriate sentence should be arrived at through a process of instinctive synthesis which entails identifying all factors relevant to the sentence, discussing their significance and making a value judgment as to the appropriate sentence;

6. Greater culpability will attach to the failure to guard against an event that is more probable than one which is extremely unlikely. However, this will be affected by how serious the harm could be, whether there was a way to mitigate the risk and how difficult or inconvenient those safety steps are; and

7. The risk to be assessed is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring.

26. The defendant’s primary failure to meet its statutory duty was the failure to inspect the Gate after installation to identify any hazards, as set out in particular (a).

27. Having regard to all the facts, and in particular the following matters, that failure gave rise to an offence that was objectively serious, falling between the low and mid-range of overall seriousness.

28. First, the Gate was installed alongside a footpath of a major thoroughfare. That meant the defendant needed to take particular care to ensure members of the public, untutored in workplace safety and unaware of the risk, were not placed in danger.

29. Second, the risk of the Gate falling was foreseeable. As the photos recorded, a cursory inspection of the gate would have identified that there was no end stop fitted at the end of track to prevent the Gate travelling past the point where the guide rollers would stop it falling. Even though the defendant parties were not builders, they ought to have attempted to discern, given the absence of an end-stop, if there was any effective method to stop the Gate from travelling too far.

30. Third, the risk was a risk of causing serious injury or death, as has occurred in like incidents discussed below.

31. Fourth, I accept that in light of the extensive guidance material available a person with day-to day management of and control of a workplace using such a Gate ought to have been aware of the dangers posed by heavy, manually operated sliding gates.

32. Those matters are balanced by two considerations. First, the defendant had engaged and relied upon a licensed company specialising in the design and installation of such gates to design and install the Gate. Second, there was uncontested evidence that there had been no incidents to alert the defendant to the risk. While the prosecutor is correct to say that consistent with its duty the defendant should have tested the Gate and so identified the flaw in its design, it is nevertheless the case that for people who are not builders, such as the Eleters, the flaw in design would not have been obvious.

33. I turn to the other particulars. As is unfortunately too common in SafeWork NSW prosecutions, in addition to the primary particular of failure there were a series of further particulars which either effectively repeated the same failing or otherwise made no significant difference to the overall culpability. As to the latter I place little to no weight on the fact that the defendant:

1. could have installed a different fencing mechanism, such as one that opened inward (particulars (f) and (g)) – any gate if not properly installed and inspected could give rise to a risk;

2. could have placed signage on or near the Gate to warn persons of the risk that the Gate might fall (particular (j)) – in the absence of any knowledge that the Gate might fall, there was no reason why such signage would be installed. If there was such knowledge there were more fundamental steps that would need to be taken. In any event, it is unclear that such a sign could make a significant difference to the risk given that pedestrians using the public footpath had no other option but to walk alongside the Gate when using the footpath; and

3. should have developed and implemented a safe work method statement (particular (k)) – this would have been redundant if the Gate was safe to use.

Deterrence

34. I place significant weight on general deterrence in determining the penalty to be imposed, given that failings in respect of sliding metal gates are not uncommon and create a very serious risk.

35. On 27 August 2020 SafeWork NSW published an incident information release titled “Industrial gate fatality – 12 June 2020”, documenting an incident where a manual sliding gate weighing 260 kilograms fell on a worker, killing him. The publication noted it was similar to two previous incidents in NSW, one involving a further fatality and another which gave rise to serious injury. The June 2020 fatal incident led to three successful prosecutions. [2]

    2. SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274; SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277; SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360.

36. Noting that such gates are generally constructed at a location where members of the public might pass, who are not employees or contractors of the worksite trained in identifying relevant risks, additional care and attention needs to be taken to ensure their safety.

37. I place minor weight on specific deterrence given that the defendant continues to operate the Site, but is unlikely to install gates in the future and has taken steps to put in place appropriate workplace health and safety systems.

Aggravating factors

38. It is an aggravating factor if the injury, emotional harm, loss or damage caused by the offence was substantial within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act).

39. In order for this aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence. [3]

    3. R v Youkhana [2004] NSWCCA 412 at [26].

40. Not only was there a risk of serious injury, but the primary victim suffered actual serious injury in the form of compound fractures to her left tibia and fibula, requiring open reduction and internal fixation surgery, as well as ongoing anxiety and psychological trauma. Her three children also suffered bruises, head injuries and lacerations. In light of those agreed facts, I am satisfied that the injury, emotional harm, loss or damage caused by the offence was substantial within the meaning of s 21A(2)(g) of the Sentencing Act.

Victim impact statement

41. The primary victim provided the Court with a victim impact statement describing the effect the incident has had on her and her children.

42. I acknowledge that drafting such a document would have been a difficult task for her and appreciate her clear statement as to the very significant impact the offence has had on her. The fear and shock of being trapped and injured while walking on a public street and the ongoing effect of that event in the form of ongoing physical and psychological injuries was eloquently described.

43. At hearing the defendant sought to question whether the Court could rely on aspects of the victim impact statement that went beyond the agreed facts, namely, the description of the nature of the ongoing psychological impact of the incident on the primary victim. In response, the prosecutor indicated a capacity to tender further evidence if an adjournment were obtained.

44. Both parties misunderstood the purpose of a victim impact statement in circumstances where the Court otherwise receives evidence establishing the impact of the offence on a person. A victim impact statement allows the Court to hear directly from a victim on the impact that the offence has had on the victim and their family. It also allows the victim to be heard by the defendant.

45. The absence of a victim impact statement cannot give rise to any inference that an offence had little or no impact on a victim. [4] Similarly, in circumstances where on the admitted evidence there was a particular impact on a victim, the sentence is not to be increased because the victim provides a victim impact statement. [5] Accordingly, it is not the role of the court to make factual findings based on a victim impact statement. There should never be a need, for example, for a victim to be cross-examined to test the content of a victim impact statement. In this case the agreed facts were sufficient to establish that the harm caused was “substantial” within the meaning of s 21A(2)(g) of the Sentencing Act, as already noted. As a consequence, it was neither appropriate nor necessary for the defendant to call into question the victim’s understanding of the ramifications of the offence to her and her family as expressed in her victim impact statement, nor was it a matter the prosecution needed to address by further evidence.

    4. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5).

    5. Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47.

Mitigating factors

46. I take into account the following mitigating circumstances.

47. The defendant has no prior convictions. [6]

    6. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e).

48. The defendant is otherwise of good character. [7] This has been demonstrated by the acceptance of its failures and the steps taken after the incident, including to ensure appropriate workplace health and safety systems and arranging appropriate inspections to identify any potential hazards or risk when work recommences, through its Project Manager Patrick Sprych. Subsequently to the incident, the defendant arranged for the removal of the Gate and installed temporary fencing at the site.

    7. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f).

49. I find that the defendant is unlikely to reoffend and has good prospects of rehabilitation. [8] Amanda Eleter, director of the defendant, through her affidavit dated 21 May 2025 has deposed that she is aware of her duty to ensure that contractors who are engaged are suitably qualified to conduct the work but also that there should be further measures in place for ensuring that works are completed to the requisite standards.

    8. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g)-(h).

50. The defendant, through the evidence of the Eleters, has shown remorse for the offence. [9] By their affidavits, they expressed how deeply upset they were by the incident and conveyed their apologies.

    9. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(i).

51. The defendant entered a plea of guilty on 7 April 2025 to the charge particularised in the original summons. The plea of guilty was entered at the third mention of the proceedings, being the stage that ordinarily attracts the maximum discount. The prosecutor accepts that a discount of 25% would be considered appropriate to reflect the utilitarian value of that early plea. [10] I accept that a discount of 25% is appropriate in the said circumstances. [11]

    10. R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32].

    11. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22.

Assistance given to the prosecutor

52. The defendant submitted that assistance given to the prosecutor should be a further matter which mitigates the sentence imposed. [12] It relied on what it describes as George Eleter’s repeated indication to the prosecutor that he was prepared to provide whatever assistance would be requested in respect of the prosecution of Star Professional. The defendant cited R v Cartwright [13] and sought the “Cartwright discount”.

    12. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23(1).

    13. (1989) 17 NSWLR 243.

53. As Beech-Jones J noted in R v XX, the rationale for the enactment of s 23(1) of the Sentencing Act is “the ‘public interest’ in encouraging offenders to supply information to the authorities which will assist them to bring other offenders to justice and provide evidence”. [14]

    14. (2017) 266 A Crim R 132; [2017] NSWCCA 90 at [54].

54. The prosecutor submitted evidence to establish that the offer of assistance had been limited to a statement to a paralegal who called to check dates on which George Eleter would be unavailable to be called in the proceedings against Star Professional.

55. During the hearing, the defendant indicated that George Eleter may be willing to provide a written undertaking of assistance, and subsequent to the hearing the Court was provided with a written undertaking provided by George Eleter to the effect that he will provide the prosecutor with a full and frank signed witness statement setting out all information relevant to the prosecution of Star Professional.

56. The prosecutor submitted that in circumstances where, by use of its compulsory powers, it had already obtained what it believes to be the extent of all relevant information that George Eleter might provide pertaining the matter involving Star Professional, such an undertaking would provide no additional utility which would attract a further discount on penalty.

57. In SafeWork NSW v Hibernian Contracting Pty Ltd,[15] Paingakulam J noted in relation to the principles applicable to an offer for assistance that:

“(1) The provision of assistance, even when provided in response to a regulatory notice, may be variable in its completeness and reliability (noting that the provision of untruthful information is a matter that would attract a criminal sanction).

(2) Assistance provided by an offender which is limited to bare compliance with a regulatory notice, the absence of which would render the offender liable to prosecution, is not a matter that would ordinarily attract a discount on sentence.

(3) Assistance provided by an offender who takes proactive steps in response to a regulatory notice, and embraces the opportunity which it presents, should not be viewed as favourably as assistance which is entirely voluntary (but can be contrasted with unwitting assistance which has been construed to fall outside s23(1)

(4) The time and financial commitment required by an offender to comply with regulatory demands (for example, where multiple notices are served on a corporate offender and its officers) is a relevant consideration.

(5) The ease with which an offender is able to implement remedial measures in response to an improvement notice served upon it assists the prosecution to prove the reasonably practicable nature of such measures in any subsequent prosecution.

(6) The timeliness of compliance with regulatory requirements benefits the prosecution in the context of a statutory limitation period for the bringing of proceedings for an offence pursuant to the WHS Act.”

15. [2025] NSWIC 4 at [89].

58. The offer for assistance by George Eleter, while commendable, is not one that attracts a s 23 discount. I accept the prosecutor’s contention that the undertaking does not amount to the supply of information to the prosecutor which will provide additional assistance to bring another offender to justice. While the defendant’s counsel is no doubt correct to say there is a difference between a “willing witness” and a compelled one, in this case there is no reason to think that George Eleter would not, if summonsed, give evidence consistent with the information he has already provided to the prosecutor in the course of its investigation, regardless of any undertaking.

Capacity to pay a fine

59. The defendant has not submitted that it has any incapacity to pay a fine. The evidence of Amanda Eleter attached a bank account balance, but I place no weight on that evidence. There was no attempt to establish the defendant’s overall assets and liabilities to allow the Court to understand the net worth and financial position of the defendant.

60. However, it was uncontested that the defendant was a small company, and the prosecutor accepted that I should take that into account in determining the penalty.

61. In Nash v Silver City Drilling (NSW) Pty Ltd,[16] Basten JA placed relevance on the size of the operation of the respondent in determining the resentencing:

“Two factors would indicate that, objectively speaking, the fine should not be at or above the half-way point of the range available. The factors are related. First, the fine will apply to corporate employers of wide-ranging size and ability to absorb a fine. That which would hardly be noticed in the balance sheet of a large corporation may push a smaller corporation to the verge of insolvency, or over. Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers.”

16. [2017] NSWCCA 96 at [59].

Comparable Cases

62. The prosecutor drew my attention to two cases that it said were comparable and so relevant in determining the quantum of the penalty.

63. SafeWork NSW v Maluko Pty Ltd (“Maluko”), [17] arose from an incident where an employee was fatally crushed by a damaged gate at the entrance to the defendant’s premises. The maximum penalty was $1,731,500 and the penalty imposed before discount was $500,000.

    17. [2023] NSWDC 274.

64. SafeWork NSW v Ceerose Pty Ltd (“Ceerose”), [18] arose from an incident where a female worker employed as a traffic controller at a construction site was required to manually operate a large steel gate which came off the track and landed on her, fracturing her lower spine and pelvis. In that instance, the maximum penalty was a $1,500,000 fine and the penalty imposed before discount was $400,000.

    18. [2017] NSWDC 313.

65. The defendant noted that in each of those cases the principal of the building sites where the incidents took place was aware that there were faults and issues with the gates prior to the incidents but had not then taken steps to ensure their safety, which meant they were cases involving a higher culpability.

66. In Maluko, the gate in question had been hit by a motor vehicle a week prior to the incident. The impact of the accident had caused the gate to come off its rails. The gate had to be operated manually thereafter but it had not then been inspected to identify the danger.

67. In Ceerose, the power to the site had been disconnected, leading to the manual handling of the gate after this time. The offender had not properly instructed the victim on the correct method of manually opening the gate and the victim had informed the project coordinator that she was having increasing difficulty in opening the gate.

68. I accept that each of those cases is relevantly different to this case, since in the current situation the defendant was not aware of any issues or faults with the operation of the Gate during the two and a half months prior to the incident. I also note the relatively small size of the defendant as a further distinguishing factor.

Penalty

69. 465 Leichhardt Pty Ltd was convicted pursuant to an order I made on 29 May 2025.

70. The appropriate fine is $240,000 which will be reduced by 25% to reflect the plea of guilty.

Orders

71. I make the following orders:

1. I impose a fine of $180,000.

2. 465 Leichhardt Pty Ltd is to pay the prosecutor’s costs of the proceedings in the amount of $42,762.77 as agreed.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

**********

Endnotes

Amendments

02 July 2025 - Removed name from [13]

17 July 2025 - Correct legislation section number.

Decision last updated: 17 July 2025