SafeWork NSW v Avant Stone Pty Ltd

[2024] NSWDC 507

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Avant Stone Pty Ltd [2024] NSWDC 507

Hearing dates:

22 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Avant Stone Pty Ltd is convicted.

(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Avant Stone Pty Ltd to pay a fine of $450,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Avant Stone Pty Ltd to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – heavy stone slabs stored on A-frames – lack of safety bars to stop slabs tipping – no documented safety system – no supervision or spotting provided when workers were moving stone slabs using overhead crane – worker crushed by stone slabs

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW) cll, 54, 55, 203, 219

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard 2550.1-2011, Cranes, hoists and winches – Safe use Part 1: General requirements

SafeWork NSW Code of Practice, Managing the risks of plant in the workplace, August 2019

SafeWork NSW Incident Information Release, Worker crushed by stone slabs, 5 November 2021

SafeWork NSW Incident Information Release Worker crushed by stone slabs, 20 December 2021

Safe Work Australia Code of Practice, Hazardous Manual Tasks, October 2018

Safe Work Australia, Falling Objects Fact Sheet, February 2012

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Avant Stone Pty Ltd (Defendant)

Representation:

Counsel:
N Evans (Prosecutor)
R Coffey (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Moray & Agnew (Defendant)

File Number(s):

2024/29647

Judgment

1. The defendant Avant Stone Pty Ltd (Avant Stone) supplied imported natural stone slabs to stonemasons and builders. Stone slabs were displayed and moved by workers using a crane at Avant Stone’s warehouse. On 20 August 2022 Mr Anton Bauer, an employee of Avant Stone, was found crushed under two fallen stone slabs. Mr Bauer sustained fatal injuries.

2. Avant Stone has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Bauer to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,860,843.

The Risk

4. The risk described in par 11 of Annexure A to the Summons is as follows:

“The risk was the risk of workers, in particular Mr Bauer, suffering serious injury or death as a result of being struck and/or crushed by a stone slab being unloaded by the overhead travelling crane, whilst undertaking work in the warehouse.”

Reasonably Practicable Measures

5. Paragraph 12 of Annexure A to the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Bauer, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

(a)   Provide an adequate racking system that prevents stone slabs from inadvertently falling, particularly when stone slabs are being moved.

(b)   Develop, implement and maintain a documented job safety analysis and/or safe work method statement specific to lifting and moving slabs;

(c)   Develop, implement and enforce a supervisory/spotting system to ensure safe systems of work set out in (b) are followed when moving or lifting stone slabs; and

(d)   Provided training and instruction on the measures in (a) to (c).”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. From January 2018, Avant Stone conducted a business or undertaking in Sydney NSW involving the supply of imported natural stone (including marble and granite) slabs to stonemasons and builders.

8. From 11 August 2022, Avant Stone also operated this business or undertaking from a second warehouse situated in Beresfield NSW (the warehouse).

9. At all material times, Avant Stone had two directors, Mr Nihil Rawal and Mr Rajiv Rawal.

10. As at 20 August 2022, Avant Stone employed ten people, including seven in Sydney and three in Beresfield. As at 30 June 2022, Avant Stone had an annual turnover of approximately $4,000,000, a figure which does not take into account expenses and outgoings during the year.

11. Prior to 11 August 2022, three people were employed by Avant Stone in anticipation of the opening of the warehouse:

1. Mr Anton Bauer was employed as a warehouse allrounder from 4 July 2022. Mr Bauer’s normal duties consisted of measuring slabs; moving and loading slabs and tiles; delivery and pickup of stock; preparation and execution of stock photography; inspection and assessment of stock; and maintaining a safe and clean warehouse and office area.

2. Mr Chad Madsen was employed as a warehouse allrounder from May 2022 and had similar duties to Mr Bauer.

3. Mr Joel Davies was employed as a sales representative from March 2022. Mr Davies’ normal duties included customer service, outbound sales with clients and communicating with warehouse staff.

Work Undertaken at the Warehouse

12. In addition to the warehouse being used to store stock, the premises were also used as a showroom to display stone slabs to prospective clients. The showroom had three rows of A-frame racks (A-frames) running from the front to the back of the warehouse. Each row contained eight A-frames with stone slabs stored and displayed on both sides of each frame.

13. An overhead travelling crane located inside the showroom was used to transport the stone slabs. The crane was a 5-tonne capacity overhead crane with a single girder of 16.5 metre span and was remote operated. Attached to the crane was a clamp, which had a safe lifting capacity of 1,200 kilograms.

14. In order to transport the stone slabs stored on the A-frames, workers were required to attach the clamp onto a stone slab and operate the crane using the remote control. This work was typically undertaken on a daily basis by the warehouse allrounders, including Mr Bauer.

The Incident

15. At approximately 9.00am on 20 August 2022, Mr Bauer and Mr Davies commenced work and were the only two employees working at the warehouse that day. Throughout the morning, several clients attended the warehouse. While Mr Davies met with the clients and showed them the stone slabs, Mr Bauer was instructed by Mr Davies to move stone slabs between the A-frames for the purpose of facilitating the selection of slabs by clients.

16. At approximately 11.15am, all clients had left the warehouse. Mr Davies then left the showroom to use the warehouse’s bathroom facilities.

17. At approximately 11.19am, Mr Davies returned to the showroom and saw Mr Bauer lying on the floor, partially crushed under two stone slabs. The stone slabs weighed approximately 315kg each.

18. Mr Davies called an ambulance and emergency services attended. Mr Bauer was unable to be revived and was declared dead at the scene of the incident.

19. There were no direct witnesses to the incident. The last work that Mr Davies saw Mr Bauer performing was the operation of the remote control to move the crane.

Relevant Legislation

20. Avant Stone had a duty under subs 19(3)(a) and (c) of the WHS Act to ensure, so far as was reasonably practicable, the provision and maintenance of a work environment without risks to health and safety and the provision and maintenance of safe systems of work.

21. Avant Stone also had duties under the Work Health and Safety Regulation 2017 (NSW) (Regulation):

1. To manage the risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person (cl 54); and

2. If it is not reasonably practicable to eliminate the risk in cl 54, to minimise the risk of an object falling on a person by providing adequate protection against the risk (subcll 55(1) and (2)). This is achieved by providing and maintaining a safe system of work which prevents an object from falling freely, so far as is reasonably practicable, or if it is not reasonably practicable to prevent an object from falling freely, providing, so far as is reasonably practicable, a system to arrest the fall of a falling object (cl 55(3)).

22. Avant Stone was required, as the person with management or control of plant at a workplace, to manage risks to health and safety associated with plant, under cl 203 of the Regulation.

23. Clause 219 of the Regulation imposes further duties in relation to plant that lifts or suspends objects. It provides that the person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that loads are lifted or suspended in a way that ensures that the load remains under control during the activity (cl 219(6)).

Guidance Material

24. The Safe Work Australia Code of Practice, Hazardous Manual Tasks, October 2018 (Code) relevantly provided that a risk assessment must be conducted for any hazardous manual tasks in consultation with workers.

25. In controlling the risks, the Code also provides that the person managing the risk must consider relevant factors such as design of the work area, systems of work used and nature, size, weight or number of things handled. If elimination of a risk is not reasonably practicable, it must be minimised by substitution, isolation or engineering controls. Engineering controls can involve changes being made to the work area, tool, load, method of handling or the way work is organised. If risk remains, it must be minimised by implementing administrative controls, so far as is reasonably practicable.

26. The Code further provides that training in the type of control measures implemented should be provided during induction into a new job and as part of an ongoing manual task risk control program.

27. The Safe Work Australia Falling Objects Fact Sheet, February 2012, relevantly provided controls for managing the risks associated with an object falling on a person, including fall prevention and fall arrest systems.

28. Australian Standard 2550.1–2011 Cranes, hoists and winches – Safe use Part 1: General requirements relevantly provided:

“1.8 Risk Assessment

A risk assessment shall be undertaken by a competent person before carrying out the operation required to be undertaken by the crane. The risk assessment shall address the proposed operation rather than each individual lift. The assessment shall be in writing and shall take into account the following:

(a) The task to be carried out.

(b) The range of methods by which the task can be done.

(c) The type of crane that will be required or that can be used.

(d) The hazards involved and the associated risks.

(e) The actual method and the other requisite plant and material.

(f) Emergency and rescue procedures.

As a result of the risk assessment, the competent person shall formulate a safe work method procedure, which shall be monitored for ongoing effectiveness and modified whenever it is found to be deficient, when the task changes or when the associated risks change.

…

2.2 Planning

The following planning activities shall be carried out by a competent person(s) in consultation with relevant stakeholders:

…

(k) Procedures to deal with reasonably foreseeable situations.

(l) Procedures to deal with reasonably foreseeable emergencies.

2.3 Matters to be Considered

At appropriate stages during planning, the following matters shall be considered, where applicable:

…

(f) Safety of personnel.

…

(j) Procedures for lifting operations.

…

(t) The documentation of work procedures where the lifting operation is not of a routine type (e.g. multiple crane lifting).”

29. The SafeWork NSW Code of Practice, Managing the risks of plant in the workplace, August 2019 provides practical guidance on identifying hazards and assessing and controlling the risk of working with plant.

30. SafeWork NSW Incident Information Release, Worker crushed by stone slabs dated 5 November 2021 provided information on the risk of workers being crushed by material stored on racking frames. It provided:

“The risk of severe or fatal injuries is high when materials, which have been stacked on their edges, are being handled or moved and the sheets are not adequately supported by suitable racking or transport frames.

Consider ‘reasonably practicable’ control measures to manage the risks associated with the handling and storage of sheet materials.

Storing the Sheets or slabs

•    store the sheets or slabs on an A-frame, truss, post frame or other purpose-designed racking system, and ensure that the safe load limit of the storage system is not exceeded

•    once stored, use appropriate restraints to retain sheets or slabs in position and prevent later movement due to wind, impact or other actions

•    if stored on a post frame, both posts must be adequately positioned to prevent the slabs from falling forward and must be re-positioned progressively as the material is removed from the frame.

Lifting and handling sheets or slabs

•    remain clear of hazard (fall) zones when lifting and handling sheets

•    never stand between the sheets or slabs, and the posts - always stand in front of the posts which break the fall of the sheets or slabs

•    use appropriate lifting equipment when handling sheets - do not exceed the working load limit of any lifting device

•    ensure all workers are adequately trained and supervised for the tasks they are performing

•    use appropriate personal protective equipment (e.g. gloves).”

Systems of Work Prior to the Incident

31. Avant Stone had procedures in place and training for workers in relation to moving stone slabs that involved:

1. When using a wedge to create a gap between stone slabs, workers were required to insert the wedge from the side of the slab to ensure the workers did not stand within the fall shadow of the slab.

2. When inserting the wedge, workers were required to insert a screwdriver from the side of the slab to create a gap to insert the wedge, again to ensure the workers did not stand within the fall shadow of the slab.

3. Once the wedge is in position and the slab is stable and on a lean towards the A-frame, workers then guided the clamp to the middle of the top of the slab. The clamp was designed in a way that it then only requires a small movement of the slab to engage and grip the slab before the worker operated the pendant to move the slab with the crane.

32. Stone slabs were stored on a 5-degree lean on A-frames.

33. Avant Stone did not have a documented system in place for lifting and moving stone slabs such as a Safe Work Method Statement or Job Safey Analysis.

34. There was no supervision or spotting system in place to ensure safe systems of work were followed when moving or lifting stone slabs at the warehouse.

35. Prior to and in anticipation of its opening, the employees who were employed to work at the warehouse were provided with an induction, training, and work under supervision of experienced employees at Avant Stone’s Sydney premises.

Systems of Work After the Incident

36. After the incident Avant Stone temporarily closed the warehouse and explored various options in relation to its work practices regarding slab storage and movement. Avant Stone subsequently engaged an engineer to design a rack/restraint system to store and display the slabs, and the existing A-frames were then modified to include vertical bars to prevent slabs from falling from the racks.

37. Safety documentation was also reviewed in consultation with the warehouse workers, and all staff participated in refresher training on safe operating procedures, including in particular:

1. Identifying and avoiding the fall shadow of stone slabs.

2. Standing away from the fall shadow of stone slabs.

3. Moving a single slab at a time.

38. 32   Training of new workers is now documented and recorded.

Evidence for the Defendant

39. Mr Nihal Rawal affirmed an affidavit on 15 October 2024 (DX 1). Mr Rawal is one of two directors of Avant Stone. Both directors were in court during the sentencing hearing. Both directors of Avant Stone have over 20 years of industry-specific experience. Both directors are actively involved in the day-to-day activities of the business.

40. Avant Stone commenced business in January 2018 from a warehouse in Sydney. On 11 August 2022, Avant Stone opened a second branch at Beresfield. Avant Stone currently has 17 employees.

41. Avant Stone held regular safety meetings with its employees and provided specific induction and training in Sydney for Mr Davies, who was to work in the Beresfield warehouse when it opened.

42. Avant Stone has never been prosecuted for a breach of its work health and safety obligations. The directors conduct regular safety inspections and have discussions with workers concerning safety issues. Workers are required to comply with Avant Stone’s safety policies and procedures.

43. Immediately following the incident, Avant Stone took steps to improve its safety systems. Between November 2022 and January 2023 Avant Stone commissioned specially designed A-frames with fall prevention barriers to minimise the possibility of slabs falling during the handling process. The cost was $60,000. These improved A-frames were installed in both the Sydney factory, and the smaller Beresfield warehouse.

44. In par 23 of his affidavit (DX 1) Mr Rawal gives details of $450,000 in total which has been spent since the incident, improving the equipment and procedures of Avant Stone. Of this amount, $350,000 was spent on the installation of overhead cranes in the Sydney factory. Avant Stone has created safety documentation since the incident and introduced risk assessment procedures and forms. These are detailed in par 24 of DX 1.

45. Mr Rawal expressed remorse and contrition in pars 25-29 of DX 1. I regard the material in the affidavit as a genuine expression of remorse and contrition. Mr Rawal also gave details (DX 1 par 30) of steps taken after the incident to deal with the emotional and psychological impact of the incident upon workers.

46. Mr Davies affirmed an affidavit on 15 October 2024 (DX 2). Mr Davies commenced employment in early 2022 with Avant Stone as a sales representative. He was engaged to work in the Beresfield warehouse when it opened. Mr Davies was provided with an induction and training when he started with Avant Stone. Mr Davies says that he was given oral instruction concerning the safe handling of heavy stone slabs. There were no written procedures. Mr Davies confirmed in his affidavit the steps taken by Avant Stone to improve processes and provide support to workers.

Consideration

47. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Objective Seriousness of the Offence

48. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

49. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

50. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

51. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

52. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

53. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

54. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

55. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

56. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

57. My findings about the defendant’s level of culpability are based upon the following:

1. Avant Stone should have known of the risk of slabs falling by reason of the guidance material (PX 1, Tabs 8-12). In particular, the SafeWork NSW Incident Information Release Worker crushed by stone slabs, dated 20 December 2021 (PX 1, Tab 12) dealt with a very similar incident to the one in the present proceedings.

2. The risk was clearly present, when unrestrained stone slabs were stored on A-frames, without any means of restraining them if they tipped over (see photo at PX 1, Tab 7, p 2).

3. The potential consequences of the risk were death or serious injury. Each stone slab weighed 3   15kg.

4. There were steps available to eliminate or minimise the risk. In particular, the racking system installed by Avant Stone after the incident, where the A-frames had vertical support posts, would have minimised, if not eliminated, the risk of stone slabs tipping. The new A-frames with the support bars are shown in the photographs behind PX 1, Tab 13.

5. There was little inconvenience in appropriate steps being implemented, as they were by Avant Stone shortly after the incident. There was a cost of $60,000 involved in changing the racking system, but that figure covered not only the Beresfield warehouse, but also the larger Sydney factory of Avant Stone.

6. The death of Mr Bauer was caused by the offence committed by Avant Stone.

7. The maximum penalty for the offence is a fine of $1,860,843, which reflects the legislature’s view of the seriousness of the offence.

8. Avant Stone was not a company which took safety lightly. However, it is apparent that they did not have appropriate systems in place in the warehouse (or indeed in the Sydney factory) to eliminate or minimise the risk of stone slabs tipping.

58. I find that the level of culpability of Avant Stone is in the upper half of the mid range.

Deterrence

59. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

60. The penalty must reflect the need for specific deterrence. Avant Stone is still conducting a business. Its operations involve supplying stone and porcelain slabs to stonemasons and builders and the continuing engagement of workers.

Aggravating Factors

61. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

62. Avant Stone has no previous convictions: s 21A(3)(e) CSP Act.

63. Avant Stone is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Avant Stone has been in business for approximately six years.

64. Avant Stone is unlikely to re-offend: s 21A(3)(g) CSP Act.

65. Avant Stone has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

66. Avant Stone has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the fatal injury to Mr Bauer was caused by its actions.

67. Avant Stone entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Avant Stone a 25% discount for an early plea.

68. Avant Stone gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

69. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

70. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

71. There was no submission about capacity to pay, so this issue does not arise. I will take into account the relatively small size of the defendant company in fixing a fine.

Costs

72. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

73. My orders are:

1. Avant Stone Pty Ltd is convicted.

2. The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Avant Stone Pty Ltd to pay a fine of $450,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Avant Stone Pty Ltd to pay the prosecutor’s costs.

**********

Decision last updated: 31 October 2024