SafeWork NSW v AWB Contractors Pty Ltd (In Liquidation)

[2025] NSWDC 273

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v AWB Contractors Pty Ltd (In Liquidation) [2025] NSWDC 273

Hearing dates:

3 July 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   AWB Contractors Pty Ltd (In Liquidation) was convicted on 3 July 2025.

(2)   The appropriate fine is $900,000 but that will be reduced by 15% to reflect the plea of guilty.

(3)   Order AWB Contractors Pty Ltd (In Liquidation) to pay a fine of $765,000.

(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 AWB Contractors Pty Ltd (In Liquidation) 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 – sunken yacht salvage – crane lift failed – mast struck worker on head – failure to conduct an adequate risk assessment – failure to develop and enforce a Safe Work Method statement – failure to prohibit workers from exceeding safe working limits of the crane – failure to prohibit workers from using inadequate load lifting points – failure to provide adequate training, instruction and supervision – PPE not in use

Legislation Cited:

Corporations Act 2001 (Cth), s 588G

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

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

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

SafeWork NSW v Whitmarsh(No. 3) [2025] NSWDC 150

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
AWB Contractors Pty Ltd (In Liquidation) (Defendant)

Representation:

Counsel:
M Cahill (Prosecutor)
I Latham (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Wotton Kearney (Defendant)

File Number(s):

2023/27878

JUDGMENT

1. On 27 January 2021 AWB Contractors Pty Ltd (In Liquidation) (AWB), a marine and salvage contractor, was attempting to lift a yacht named “Crazy Train” from the water. In the course of that salvage operation the crane lift failed. The mast of the yacht struck and killed one of the workers Mr Max Haywood.

2. AWB has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Haywood 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 $1,766,130.

The Risk

4. The risk described in par 16 of Annexure A of the Summons is as follows:

“The risk was to workers, in particular Mr Poulton and/or Mr Haywood and/or Mr Wilson and/or Mr Noble, of death or serious injury as a result of being struck, and/or crushed, by the load or part of the load and/or by part of the crane and/or lifting device during the lifting operation.”

Reasonably Practicable Measures

5. Paragraph 17 of Annexure A of 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 was reasonably practicable, the health and safety of its workers, in particular Mr Poulton and/or Mr Haywood and/or Mr Wilson and/or Mr Noble, in that it failed to take any one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate the risk to the health and safety of the workers, or, in the alternative, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers:

(a) Undertaking and implementing an adequate risk assessment before work commenced on [sic] re-floating and recovery of Crazy Train, from the Rozelle Bay Maritime Service Centre, in preparation for the lifting of the vessel from the water and disposal of the vessel at the defendant’s premises, which included (but not limited to) any one or more of the following:

(i) preparing a detailed estimate of the weight of the vessel in air and in the water;

(ii) [deleted]

(iii) identifying the size of the crane and/or lifting device with any related plant and equipment (for example, not limited to, lifting slings, a portable crane scale/load cell however described) required to perform each of the projected lifts;

(iv) identifying size of the crew required to perform the lift, together with the appropriate qualifications, training and experience required by the ‘lift crew’;

(v) identifying the risk of the vessel re-sinking and identifying appropriate controls, including, but not limited to, the scheduling of the re-floating and recovery of the vessel to the defendant’s premises at a date and time at which the appropriate crane/lifting and the appropriate lifting crew are available to lift the vessel out of the water at the defendant’s premises for subsequent disposal; and, also, identifying and ensuring that equipment necessary to keep the vessel afloat is available to be deployed;

(vi) identifying the need, if any, for a written lift plan in relation to the proposed lifts;

(vii) reviewing any existing Safe Work Method Statements applicable to the re-floating and lifting of vessels, including, but not limited to reviewing any generic safe work method statements relating to the operation of cranes and/or lifting devices to be used in the operations to ensure, as far as is reasonably practicable any such generic safe work method statements are up to date and appropriate for use in relation to the subject task.

(b) Requiring a Safe Work Method Statement be developed and enforced in response to the risk assessment as set out above in (a) which contained adequate information in relation to the risks and the controls relevant to performing the subject task;

(c) Further and in the alternative to (a) and (b) above, following the sinking of the vessel at the defendant’s premises, undertaking an adequate risk assessment with the assistance of an appropriately qualified diver before work commenced on the lifting of the vessel which included (but was not limited to) any one or more of the following:

(i) the above matters referred to from sub-paragraphs (a)(i) to (a)(vii);

(ii) identifying any additional and/or particular risks associated with the fact that the vessel was submerged suspended, either in whole or in part, from the stern of another vessel, including, but not limited to, the identification of hazards associated with crush or entrapment points; the instability of the vessel due to weather and/or vessel wash; and/or the failure of the mooring lines;

(iii) identifying the need for control of the vessel to be maintained during lifting and, in particular, that the need for the vessel be lifted evenly so that, during the lift, control and balance of the load is maintained;

(iv) identifying the need for appropriately qualified and experienced divers, if any, to be involved in the recovery of the vessel and/or lifting of the vessel to the surface of the water, including, but not limited to, the following:

a. the placement of lifting slings under the hull of the vessel and the connection of those slings to the crane hook and/or other lifting devices in preparation for the lift; and/or

b. other duties associated with the recovery and lifting of the vessel, such as observing the lift; observing the location of the slings; and observing and the trim of the vessel during lifting;

(d) Further and in the alternative to (a) and (b) above, requiring a Safe Work Method Statement be developed and enforced in response to the risk assessment as set out above in (c) which contained adequate information in relation to the risks and controls relevant to performing the subject task;

(e) Further and in alternative to the steps set out in (a) to (d) above, requiring the recovery of Crazy Train, submerged, suspended in the water from the stern of Barge No. 1, to be planned, scheduled and conducted using any one or more of the following pieces of plant and/or equipment (in a manner consistent with relevant safe working loads and/or limits) in relation to the lifting of the vessel:

(i) a crane; and/or

(ii) other lifting device/s, such as the A Frame and/or salvage airbags; and/or

(iii) lifting equipment, such as lifting slings or chains; and/or

(iv) the attachment or lifting points selected for use in the lifting of the vessel.

(f) Prohibiting workers from using any crane and associated equipment such as slings for a proposed lift of a submerged vessel (based on an assumption that the submerged vessel was filled with entrained water) which would exceed, or which would risk exceeding the safe working limits of the crane and/or other lifting device and/or associated lifting equipment,

(g) Prohibiting workers from using lifting attachment points fittings and/or fixtures not designed for purpose of lifting the vessel, or otherwise designed as strong points capable of supporting the weight of the vessel, fittings and fixtures, including, but not limited to, the mast of a yacht;

(h) Engaging as required, an appropriately qualified, trained and equipped dive team to assist in the conduct of the lifting of vessels to the surface of the water;

(i) Providing operators of a [sic] cranes or lifting devices used in the lifting of the vessels, including, but not limited to, the Mobile Crane with adequate training in relation to the crane or lifting devices, including, but not limited to:

(i) the controls of the crane or other lifting devices;

(ii) the installation and use of any additional operational aids or limiting devices for use in maintaining the operation of the crane or other lifting devices within the limits of its safe operation, including, but not limited to, the fitting and use of a portable crane scale or load cell;

(iii) the working load limits of lifting equipment, such as slings;

(iv) the load charts for the crane or lifting devices; and

(v) Safe Work Procedures relating to the use of the crane or lifting devices.

(j) Providing adequate training and/or instruction to the workers in relation to Safe Work Procedures/Safe Work Method Statements and the prohibitions referred to in sub-paragraphs (a) to (I) above and verifying related competencies on an initial and ongoing basis

(k) Providing adequate supervision for workers engaged in the conduct of the recovery and lifting of a vessel so as to ensure so far as is reasonably practicable that the subject works are conducted in accordance with the written safe work methods, such as a safe work method or procedure of the kind referred to in sub-paragraphs (b) and (d) which has been developed, authorised and promulgated by the defendant;

(l) Providing and maintaining use of Personal Protective Equipment relevant to the performance of load lifting work in a marine environment, including, but not limited to:

(i) the wearing of a hard hat when working in proximity to a crane or lifting device;

(ii) a life jacket or life vest when working on and/or in proximity to water.”

6. Counsel for AWB submitted at the sentence hearing that AWB no longer disputed any of the particulars in the Summons now relied upon by SafeWork. Further, AWB now accepts the findings made against it in in the related proceeding of SafeWork NSW v Whitmarsh(No. 3) [2025] NSWDC 150 (the Whitmarsh Judgment) at pars [326]-[334].

Background

7. The parties agreed that the factual findings made in the Whitmarsh Judgment should become the agreed facts (to the extent that they related to AWB) on this sentence hearing. Counsel for SafeWork identified the factual findings in the Whitmarsh Judgment as those in pars [53] to [325]. This submission was not put in issue by counsel for AWB.

8. I will not repeat those factual findings here but I incorporate them into this judgment by reference.

9. The parties also agreed that they adopted the exhibits and oral evidence from the Whitmarsh trial (resulting in the Whitmarsh Judgment), to the extent that they related to AWB and were necessary for the sentencing of AWB.

Evidence for the Defendant

Background

10. AWB was a small sized business operating at a site in Rozelle. Prior to AWB going into liquidation, the business employed approximately 6 employees.

11. AWB’s business provided salvage operations for vessels and built small waterfront marinas, mainly in Sydney Harbour. It was often engaged by Transport for New South Wales (TfNSW) to remove vessels and then dispose of them.

12. The usual process when salvaging submerged vessels for TfNSW was for the vessels to be righted, pumped out, towed back to the site, lifted out of the water and then onto the barge, and then cut up and disposed of. Most of the salvage operations involved vessels that were floating and in TfNSW’s compound in Rozelle Bay.

13. Due to the size of the business, AWB did not employ a dedicated safety manager. However, AWB did prepare Safe Work Method Statements (SWMSs) for various jobs. Former employees assisted in preparing safety documents. Mr Whitmarsh oversaw and signed the SWMSs.

The Incident

14. In January 2021, AWB was engaged by TfNSW to salvage a submerged vessel called Crazy Train.

15. Mr Matthew Poulton was a long-term employee of AWB and was responsible for supervising the lift of Crazy Train.

16. Mr Whitmarsh did not see the incident involving Mr Haywood occur but he was present at the workplace. Mr Whitmarsh immediately rushed down to the No. 1 Barge where the incident occurred.

17. On the day, Mr Whitmarsh contacted Mr Haywood’s wife, Tracey, to inform her of the passing of Mr Haywood. He recalled that this conversation was very difficult and that it remains vivid in his memory.

Safety Systems prior to the Incident

18. At the time of the incident, AWB had the following policies and procedures in place:

1. Work Health and Safety and Environmental Manual (Last Revision date 14 October 2016);

2. AWB Work Health and Safety Policy; and

3. SWMSs for previous jobs, including the SWMSs titled:

1. “AWB SWMS - Job/Task: Dismantling Wreck of “Harbour Queen” WSMS 3: Removal of Hull from Seabed - Salvage and Lifting”;

2. “AWB SWMS - Job/Task: Dismantling Wreck of “Harbour Queen” WMS - Stage 1: Dismantling and Removal of Top Deck”, dated 6 June 2012; and

3. “AWB SWMS - Job/Task: Dismantling Wreck of “Harbour Queen” WMS - Stage 2: Dismantling and Removal of Main Deck Superstructure”, dated 8 June 2012.

19. AWB’s safety management system was partly informal. Staff competencies were observed by Supervisors as part of their day-to-day site management.

20. It was also a practice that safety hazards or risks identified by AWB employees would be raised with Mr Whitmarsh as the Director.

Safety measures taken post-incident

21. SafeWork attended the worksite to investigate the incident.

22. AWB was compliant with the SafeWork investigation and otherwise cooperated and complied with all statutory requests.

23. This included, complying with SafeWork Improvement Notice 7-390405 dated 29 January 2021, and undertaking the following steps:

1. creating a SWMS for salvage and lifting, by adapting the form of SWMS 3 - Removal of Hull from Seabed - Salvage and Lifting.

2. updating the SWMS for operating cranes, in the form of SWMS 7 - Safe Crane Operations; and

3. hosting a toolbox talk on 12 March 2021 in relation to the revised SWMSs above at ‘1’ and ‘2’.

24. Five employees were present at the toolbox talk, and signed off on the toolbox talk minutes.

25. In respect of removing hulls from seabeds, SWMS 3 included measures in writing such as:

1. lifting should only ever occur by slings fixed to the hull of the vessel and never fixtures of the mast;

2. toolbox talks are to be held to determine the safe way to perform the task;

3. lifting chains will be inserted through slings placed by divers who will test that chains are secure; and

4. divers inspect the vessel and notify the Barge Supervisor about hazards and position of the vessel, and the Barge Supervisor will give instructions on where to feed slings underneath.

26. In respect of operating cranes, SWMS 7 includes measures in writing such as:

1. the load charts for the crane and sheer legs must be used to operate the crane; and

2. the crane must only be operated by a certified person.

Impact on the AWB business

27. AWB was financially impacted by the incident as the company lost, or was not successful in being awarded work, from many of its former clients, including private clients and government bodies.

28. Prior to the incident, Mr Whitmarsh believes AWB was one of the main contractors for a lot of salvaging work.

29. AWB was a small business that heavily relied on its work from government entities, and other private businesses. Mr Whitmarsh was the sole director and shareholder at the time of the incident and ran the business himself.

30. Mr Whitmarsh struggled to continue operating the business following the incident. AWB was ultimately placed into liquidation in November 2024. (In this regard, the liquidator’s report, in evidence in PX 1, tab D, said that AWB had been trading while insolvent since at least 30 June 2020, if not earlier).

31. Although Mr Whitmarsh continues to work as a director for another company, AWB Waterfront Constructions Pty Ltd (AWB Waterfront), this business suffers from the same difficulty in sourcing work. Mr Whitmarsh believes this is due to the effects of the incident, and reputational impact on AWB and himself as the director. AWB Waterfront receives far less work than AWB did prior to the incident. (It is noted that this was just one of three reasons for the failure of AWB given to the liquidator – the other two being trading difficulties arising from the COVID-19 pandemic and outstanding statutory debt owed to the Australian Taxation Office: PX 1, Tab D, p 5).

Impact on Mr Whitmarsh’s personal health

32. Mr Whitmarsh submitted that the incident had a significant impact on his personal health. He reported experiencing emotional distress. (There was no medical evidence in this regard.).

“Statement of contrition”

33. Mr Haywood had worked with Mr Whitmarsh for approximately 30 years and was a very experienced worker. He had been involved in most of the salvages over many years. Mr Whitmarsh remembers Mr Haywood as a great person, and the times they had together as great friends. It deeply saddens Mr Whitmarsh that Mr Haywood passed away because of the incident. His loss has been strongly felt by other workers and Mr Whitmarsh personally. Mr Whitmarsh sincerely cares about the safety of workers and regrets “that Mr Haywood found himself to be in a circumstance of risk and in harm’s way”. Mr Whitmarsh regrets that the incident occurred and acknowledged the charge laid against him. Mr Whitmarsh acknowledged that the impact on Mr Haywood’s family was immense and thinks of them. Mr Whitmarsh wished that the Incident never happened, and that Mr Haywood could still be with his family today. It is something that Mr Whitmarsh says he will live with for the rest of his life and will continue to be an emotional challenge for him. Mr Whitmarsh understood that Mr Haywood’s family does not wish to keep contact with him after the Incident, and he has respected their wishes in that regard. Mr Whitmarsh continues to think about Mr Haywood every day. He has a plaque of Mr Haywood in his office, and he looks at it every day. Whilst it is not possible to turn back time, Mr Whitmarsh truly hopes that no such incident ever occurs again. (While I must accept that this is evidence of genuine regret, it is not evidence of remorse, as that term is defined in the sentencing legislation discussed below).

No prior convictions

34. Mr Whitmarsh has no prior convictions or criminal history.

35. Mr Whitmarsh has never been the subject of any other breach of work health and safety law and was not prosecuted by SafeWork prior to the incident. AWB and related entities of AWB have not otherwise been the subject of work health and safety prosecutions.

Consideration

36. 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

37. 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].

38. 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].

39. 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.”

40. 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].

41. 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.

42. 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.

43. 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.”

44. 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.”

45. 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.”

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

1. The risk was actually known by the offender. Further, the offender should have known of the risk by reason of the guidance material.

2. The likelihood of the risk occurring was significant. There were just so many poor practices for which AWB was responsible, not just on the day of the incident, but long-term.

3. The potential consequences of the risk were serious injury or as happened, death.

4. There were steps available to eliminate or minimise the risk, as pleaded in the Summons.

5. There was no significant burden or inconvenience taking those steps. AWB implemented suitable procedures quickly after the incident.

6. Mr Haywood died as the result of the breach by AWB of its work health and safety duty.

7. The maximum penalty for the offence is a fine of $1,766,130, which reflects the legislature’s view of the seriousness of the offence.

8. I repeat what I said in the Whitmarsh Judgment at pars [326] – [330] and [332] – [ 334].

9. I also made findings about the acts and omissions of Mr Whitmarsh in pars [335] – [344] in the Whitmarsh Judgment. Similar findings are now made in respect of AWB:

1. AWB failed utterly to take appropriate steps to eliminate or minimise risks to health and safety in relation to the raising of Crazy Train.

2. AWB failed to carry out any of its responsibilities, set out in plain English in the AWB safety documentation.

3. AWB gave no attention to the hazards involved or the means of ameliorating those hazards.

4. AWB abdicated its responsibility to carry out its duty under the WHS Act.

47. I find that the level of culpability of AWB is in the high range.

Deterrence

48. 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].

49. The sentence must consider the need for specific deterrence. However, AWB is in liquidation and its position looks financially hopeless. In these circumstances specific deterrence has no role to play.

Aggravating Factors

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

Mitigating Factors

51. AWB has no previous convictions: s 21A(3)(e) CSP Act.

52. AWB 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.

53. Counsel for AWB submitted that AWB was of good character: s 21A(3)(f) CSP Act. I do not accept that submission for the following reasons:

1. There was no character evidence from other persons.

2. AWB has traded while insolvent, for the last 5 years at least: s 588G Corporations Act 2001 (Cth).

3. AWB went into liquidation owing $96,130 to its employees for superannuation.

4. Some of the $910,587 owed by AWB to the Australian Taxation Office was employees’ money, in that it was PAYG instalments deducted from wages but not remitted to the ATO.

5. The report of the liquidator states that over $3,000,000 worth of potential voidable transactions by AWB are still being investigated.

54. Counsel for Mr Whitmarsh submitted that AWB was unlikely to re-offend: s 21A(3)(g) CSP Act. This is so, but only because AWB is in liquidation.

55. Counsel for Mr Whitmarsh submitted that AWB has good prospects of rehabilitation: s 21A(3)(h) CSP Act. I do not accept this submission. Rehabilitation has no relevance when AWB has ceased to function.

56. Counsel for Mr Whitmarsh submitted that AWB has shown remorse for the offence: s 21A(3)(i) CSP. I do not accept this submission. Section 21A(3)(i) of the CSP Act provides that a mitigating factor is any remorse shown by the offender for the offence but only if: the offender has provided evidence that he or she has accepted responsibility for his or her actions; and the offender has acknowledged any injury, loss or damage caused by his or her actions or via reparation for such injury, loss or damage (or both).

57. The material in the affidavit of Mr Whitmarsh (DX 2) does not establish remorse as that term is understood in the CSP Act. AWB has not accepted responsibility for its actions and has not acknowledged that the death of Mr Haywood was caused by its actions. As counsel for SafeWork pointed out in oral submissions, the regret which Mr Whitmarsh expressed is largely a regret about the effects of the death of Mr Haywood upon Mr Whitmarsh himself.

58. Further, Mr Whitmarsh said in his affidavit that “Mr Haywood found himself to be in a circumstance of risk and in harm’s way”. This is a cynically opaque expression which falls a long way short of accepting that AWB was responsible for creating the risk, and causing the harm.

59. AWB 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 AWB a 15% discount for an early plea. I have reduced the percentage from the standard 25% discount, because AWB’s plea was entered on 11 June 2024 on the basis that it disputed certain particulars in the Summons and some of the facts. AWB did not change that position until delivery of the Whitmarsh Judgment nearly a year later.

Capacity to Pay a Fine

60. 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.

61. 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.”

62. Counsel for AWB pointed to the fact that AWB is in liquidation and has no financial capacity to pay a fine. While any fine will only be a pyrrhic victory for the prosecutor, I do not regard AWB’s self-inflicted impecuniosity to be a justification for a reduction of the fine which is otherwise appropriate, given the need to:

1. ensure that AWB is adequately punished for the offence: s 3A(a) CSP Act

2. deter other persons form committing similar offences: s 3A (b)CSP Act

3. make AWB accountable for its actions; s 3A(e) CSP Act

4. denounce the conduct of AWB: s 3A(f) CSP Act

5. recognise the harm done to the family victims of the crime: ss 3A(g) and 30E CSP Act.

Victim Impact Statements

63. The defendant was convicted at the sentence hearing on 3 July 2025.

64. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).

65. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) - (3) above.

66. A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).

67. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).

68. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased - s 26.

69. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community - s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

70. Mrs Tracey Haywood, the wife of Mr Haywood, and Miss Rebekah Haywood, the daughter of Mr Haywood, read to the Court their Victim Impact Statements (PX 3 and PX 4).

Tracey Haywood

71. Mrs Haywood described the pain caused by the unexpected death of Mr Haywood. Mrs Haywood described how “[a]ll the emotions hit at once, I felt like I couldn’t breathe, it felt like someone had sucker punched me to the stomach” when she was told by Mr Whitmarsh that Mr Haywood had been killed. She said that this news changed her life forever.

72. Mrs Haywood also described the difficulty of breaking the news to her daughter. She explained that there was no time to process or think about how she would tell her daughter and that she still regrets using the words “Dad’s dead” to tell her.

73. Mrs Haywood has experienced difficulty sleeping and was diagnosed with depression and anxiety after Mr Haywood’s death. She was prescribed medication for this and is currently on the highest dose recommended. Sometimes she felt that the dosage was not enough and it was increased further under her doctor’s supervision. Joyous occasions such as their wedding anniversary and birthdays have become sad because Mr Haywood is not there to celebrate. The anniversary of Mr Haywood’s death is especially difficult.

74. Mr and Mrs Haywood were married for 31 years. They had planned to renovate their house and worked hard saving money to make this happen. Mrs Haywood described her sadness that Mr Haywood never got to see the renovations happen. Mrs Haywood cries about events and experiences that Mr Haywood will miss such as being a grandfather and walking their daughter down the aisle at her wedding.

75. Mrs Haywood said that she feels that she is a burden to her work colleagues and students when she is not able to work due to her emotional distress. Mrs Haywood explained that her anxiety makes it difficult for her to attend social events with her family and friends. She was thankful for her supportive family who have assisted her with advice and practical tasks that she would have done with Mr Haywood but feels that “this is a burden that they should have never had to bear”.

76. Mrs Haywood now works two jobs to make ends meet. She has used all of her paid leave entitlements since her husband’s death and now must take Leave Without Pay if she needs time off work.

77. Mrs Haywood explained that she now pays someone to mow her lawns, finds it difficult to cook for only herself and does house jobs that Mr Haywood always used to do.

78. Mrs Haywood explained that if anything is to come out of Mr Haywood’s death she hopes that improvements can be made to workplace safety practices and enforcement.

Rebekah Haywood

79. Ms Rebekah Hayward explained that the day Mr Haywood died was “the worst day of my life and it was the day that changed everything”. She described how she cried instantly after hearing the news and felt like she wanted to be sick.

80. Ms Haywood was told about Mr Haywood’s death at her workplace. She explained that it was difficult to walk into the building where she was told for about six months because she would experience emotional distress with a series of physiological symptoms.

81. Ms Hayward described how Mr Haywood was “very actively involved in [her] life”. She was sad that Mr Haywood and her fiancé could not grow their relationship. They had only known each other for a short time but they got along very well. Ms Haywood expressed her sadness that Mr Haywood never got to meet her daughter and would not get to meet any future grandchildren. She remembered Mr Haywood as a patient and loving father. She recalled that he made her a doll’s house when she was a young girl and she believed that he would have built her daughter a doll’s house too.

82. Ms Haywood explained that Mr Haywood had missed many important milestones in her life since his death such as her engagement and that he will also miss important milestones in the future. Mr Haywood used to offer practical help to Ms Haywood in the past. Ms Haywood described her sadness that he would not be able to help with handyman jobs around her house.

83. Since Mr Haywood’s death Ms Haywood has had trouble sleeping and has taken sleeping tablets as a result. She has anxiety and depression and has found it difficult seeking treatment. She explained that she had started treatment with mental health professionals who had then moved away. She has now started seeing a mental health professional fortnightly.

84. Ms Haywood explained her shock and anger that AWB was still operating months after the incident. She felt that “our world was torn apart again” because Mr Whitmarsh was able to continue operating AWB and “get on with his life, like nothing happened”.

85. Ms Haywood expressed her view that there should be stricter WHS procedures and more should be done to ensure that WHS guidelines are complied with. Ms Haywood concluded by saying that her father was a very important and influential person in her life. She was always able to speak to him and he would listen and give advice on whatever she needed. Miss Haywood said “I miss him so much. Not a day goes by where I don’t think of him.”

79. I take into account the devastation, grief and sorrow brought upon Mr Haywood’s widow and daughter. Mr Haywood created a loving, close and supportive family. He (and his wife and daughter) always worked hard. Every worker should be able to come home safely at the end of their shift. Every family should expect their loved one to walk in the door at the end of the day. Sometimes in this court, the submission is made that the worker was employed in a “dangerous” industry. But this is only the case when businesses do not properly discharge their duty under the WHS Act. The legal obligation is to eliminate or minimise risks. Instead, AWB created multiple risks and showed little or no regard for the safety of its loyal employees. The harm done to this family is irreparable. I will take it into account, as best I can within the confines of the law as to sentencing.

Costs

87. There will be an order that the defendant is to pay the prosecutor’s costs.

Penalty

88. My orders are:

1. AWB Contractors Pty Ltd (In Liquidation) was convicted on 3 July 2025.

2. The appropriate fine is $900,000 but that will be reduced by 15% to reflect the plea of guilty.

3. Order AWB Contractors Pty Ltd (In Liquidation) to pay a fine of $765,000.

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 AWB Contractors Pty Ltd (In Liquidation) to pay the prosecutor’s costs.

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Decision last updated: 23 July 2025