SafeWork NSW v Bellabrae Homes Pty Ltd

[2025] NSWDC 252

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Bellabrae Homes Pty Ltd [2025] NSWDC 252

Hearing dates:

19 May 2025

Date of orders:

11 July 2025

Decision date:

11 July 2025

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   Bellabrae is convicted.

(2)   The appropriate fine is $300,000 and that will be reduced by 25% due to the early plea.

(3)   Accordingly, Bellabrae is to pay a fine of $225,000.

(4) I direct Bellabrae to make an adverse publicity order pursuant to s 236 of the WHS Act, such order being in the form of Annexure A to the affidavit of Natalie Martin affirmed on 23 April 2025, to be published in the Master Builder Magazine in either edition 3 or 4 of 2025.

(5)   The prosecutor is to receive a moiety of 50% of the fine.

(6)   The defendant is to pay the prosecutor’s costs as agreed or assessed.

Catchwords:

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

COSTS – prosecutor’s costs

Legislation Cited:

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

Work Health and Safety Act 2011 (NSW), ss 8, 16, 31, 32, 236

Cases Cited:

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

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

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

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:

SafeWork NSW Code of Practice – Excavation Work (January 2020)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Bellabrae Homes Pty Ltd (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
M Minucci (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Kingston Reid (Defendant)

File Number(s):

2024/211111

Publication restriction:

Nil

JUDGMENT

1. Bellabrae Homes Pty Ltd (Bellabrae) is a registered corporation, with its registered address at 31 Bugle Circuit, Kellyville NSW 2155, from which it operated as a person conducting a business or undertaking (PCBU) in residential construction. At all material times, Mr Gagandeep Jitla (Mr Jitla) was the sole director of Bellabrae.

2. Bellabrae entered a plea of guilty to an offence that, as a PCBU, it had a health and safety duty under s 19(1) of the Work Health and Safety Act2011 (NSW) (WHS Act) to ensure, so far as is reasonably practicable, the safety of workers while workers are at work in the business or undertaking. Bellabrae failed to comply with its duty and this failure exposed workers, including Mr Lachlan Sloane (Mr Sloane) and Mr Benjamin Nicol (Mr Nicol), to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The prosecutor tendered the Prosecution Sentence Tender Bundle which became exhibit A, and an affidavit of Natalie Martin affirmed 23 April 2025 which became exhibit B. Bellabrae tendered an affidavit of Mr Gagandeep Singh Jitla affirmed on 5 May 2025 which became exhibit 1.

Background

4. Bellabrae was the principal contractor of a new build at 46 Whitsunday Crescent, North Kellyville, New South Wales (the site), which was a workplace within the meaning of s 8 of the WHS Act. Mr Jitla attended the site approximately three to four times per week.

5. Mills & Watson Plumbing Pty Ltd (ACN 633 938 119) (Mills & Watson) operated as a PCBU in plumbing, drainage, pipelines and excavations for residential, commercial and industrial properties, and Mr Christopher Mills (Mr Mills) was the director of Mills & Watson.

6. On or about May 2022, Bellabrae subcontracted to Mills & Watson for the internal and external plumbing work involved for the new build at the site.

7. Approximately 6-8 weeks prior to the incident and before plumbing work commenced, Excon Services Excavation (Excon) was engaged by Bellabrae to excavate the site in order to lay a concrete slab (the concrete slab). This excavation formed an excavated face more than 1.5 metres high (the earthen wall) along the eastern boundary of the site.

8. The plumbing work to be undertaken by Mills & Watson at the site required additional excavation work to be undertaken in order to lay plumbing pipes. Mills & Watson subcontracted this excavation work to Rijo Civil Pty Ltd (Rijo) who then subcontracted to JG Plumbing and Excavation Pty Ltd (JG Plumbing). Rijo did not attend the site.

9. At all material times, the following workers were performing works at the site:

1. Mr Sloane, who was a second-year apprentice obtaining the Plumbing Certificate II, and had been employed by Mills & Watson since 1 June 2020.

2. Mr Nicol, who was a drainer and supervisor employed by Mills & Watson for 10 months and had been performing plumbing and draining work for approximately 11 to 12 years.

3. Jack Godwin (Mr Godwin), excavator operator engaged by JG Plumbing and one of its directors.

4. Aidan Shannon (Mr Shannon), pipe layer engaged by JG Plumbing.

10. Mr Sloane, Mr Nicol and Mr Godwin had not been to the site before the day of the incident. Mr Nicol had worked with Mr Godwin and Mr Shannon on approximately 10 to 15 jobs prior to the incident. Mr Mills had known Mr Shannon and Mr Godwin for approximately 10 years. Both Mr Shannon and Mr Godwin had conducted their apprenticeships for Mr Mills.

11. On or around 15 June 2021, Bellabrae began work at the site.

12. On 17 September 2021, Bellabrae was provided with a geotechnical report by Idealgeotech stating that there was not existing fill or fill containing wood, metal, plastic or other deleterious materials in the soil, and that excavation of the site will be of rock.

13. In February 2022, Bellabrae engaged Meares Consulting Pty Ltd (Meares), an engineering firm, to perform stormwater and structural design for the site. A representative of Meares attended the site on five occasions throughout April and May of 2022.

14. Bellabrae had Architectural Plans prepared by FYFFE Design dated 9 March 2022, which set out design information and plans for the build. It contained the following:

“Sediment note:

1. All erosion and sediment control measures to be inspected and maintained daily by the site manager,

2. Minimise disturbed areas, remove excess soil from excavated area as soon as possible.”

15. From early April 2022 to 3 May 2022, Excon undertook excavation in the perimeters on the eastern boundary of the site marked out by Bellabrae. Bellabrae did not instruct Excon to batter, shore and/or pile the excavation.

16. On 13 March 2022, Mills & Watson provided a draft quote to Bellabrae, which included the exclusion “no allowance for trench shoring”. Bellabrae provided Mills & Watson with some plans, but these did not show the conditions encountered on site, nor were they engineering plans. Mills & Watson had performed work for Bellabrae previously in 2019 and 2020 on other jobs.

17. During May 2022, Mr Mills and Mr Jitla attended the site to discuss the drainage under the concrete slab. Mr Mills informed Mr Jitla that additional excavation may be required next to the eastern boundary wall to accommodate the drainage needed but this would be determined on the day the work was to be undertaken. Mr Mills attended the site alone on one other occasion to perform a general inspection of the site.

18. Bellabrae asserts that the potential risk associated with working next to the earthen wall was discussed with Mr Mills during a site visit and walk through. There were no discussions in relation to any controls such as battering, shoring or piling that may have been needed.

The Trench

19. On 9 June 2022, JG Plumbing began excavating a trench approximately 300mm deep (the trench) in order to lay pipes. The trench lay in between the face of the earthen wall previously excavated and the neighbouring property. Mr Mills and Mr Sloane believed the height of the earthen wall was around 2 metres. Bellabrae states it was 1.2 metres in height.

20. SafeWork NSW Inspector Shaw, who attended the site on 9 June 2022, noted that:

“The eastern side of the excavation ranged from approximately 0m at the northern end and to approximately 2.5m at the southern end. An excavated cut on the south face of approximately 3.5m high was near to vertical and beginning to slump at approximately 800m high from the base. There did not appear to be any type of shoring system in place.”

The Incident

21. Prior to the incident, Mr Mills informed Mr Sloane to attend the site to perform the external drainage. Mr Sloane, Mr Nicol and Mr Godwin were attending the site for the first time on 9 June 2022, and there was no site-specific induction or toolbox talk or meeting in relation to work health and safety prior to working.

22. Mr Nicol was supervising the work by virtue of being “the oldest” worker. Mr Mills told Mr Nicol the tasks for the day and provided him with an A3 printed plan from Bellabrae which illustrated where plumbing infrastructure such as sewer connection and stormwater drains needed to be included in the build.

23. Mr Nicol indicated he did not know if there was an inspection of the soil material, or any other inspection done of the area prior to excavation. Mr Mills did not have discussions with Mr Sloane or Mr Nicol regarding controls that needed to be in place when doing excavation work or digging trenches at the site.

24. On 9 June 2022, Mr Nicol marked out the area for laying pipes with Mr Godwin, and Mr Nicol indicated the trench need to be about 900mm wide. It was decided Mr Godwin would dig the side closest to the earthen wall to excavate the trench.

25. Mr Godwin commenced excavating the trench using a 5-tonne Kobelco excavator, and he placed the soil removed from the trench onto the side of concrete slab. In re-excavating the boundary wall, Mr Godwin did not change the profile of the wall. He battered off the excavation of the trench by using the mud bucket of the excavator.

26. Mr Sloane, at approximately 8.30am, jumped into the trench to clear out the remaining rocks and fill with a shovel to make it flat prior to laying the pipes. Mr Sloane stated he was not specifically instructed to do so by anyone. Mr Nicol stated it was usual practice to go into a trench to get the loose material out of the bottom before laying the pipework, and that he may have asked Mr Sloane to get in the trench.

27. Mr Nicol had also been in the trench minutes earlier prior to the earthen wall collapse, clearing it out with a shovel. Mr Godwin was using the excavator approximately 5 to 15 metres away from Mr Sloane at the time of the collapse and was continuing to dig the trench. He was not facing Mr Sloane at the time. Mr Shannon was approximately a metre away from Mr Sloane working in the trench when the incident occurred.

28. Mr Sloane heard someone yell out to get out of the way and then the earthen wall collapsed on him, causing him to fall on his side and being engulfed by the soil. Mr Shannon and Mr Nicol yelled out and began digging Mr Sloane out by hand, Mr Godwin also stopped his excavator and came to assist. The workers rendered first aid to Mr Sloane, removed him from the soil and called emergency services.

29. Mr Sloane was treated for pelvic fracture, right superior and inferior pubic rami fractures. He was discharged from hospital with non-operative management on 12 June 2022 and returned to work in September 2022

Investigation

30. Inspector Shaw recorded the height of the soil in the area where Mr Sloane was struck was approximately 1.6 metres above the concrete slab. Adding on the depth of the concrete slab and then the 300mm of the trench brings the height from the bottom of the trench to top of the earth wall at approximately two metres.

31. Mr Samuel Walker (Mr Walker) produced an expert report relating to the incident dated 13 December 2023, stating that the likelihood of the earthen wall collapsing significantly increased when the height of the excavation is greater than 1.5 metres in height, and this is also dependent on several factors, including fill material.

32. Mr Walker determined the following in his report:

1. The excavated face along the eastern boundary, being constructed without any restraining structure and at any angle greater than the natural angle of repose of the soil, collapsed due to instability of the soil.

2. An uncontrolled collapse of any excavation was a foreseeable hazard, and it was a reasonably foreseeable practice that a worker would enter the trench.

3. Following the completion of the site excavation, on or before 3 May 2022, a reasonably foreseeable risk of an uncontrolled collapse was present.

4. The Architectural Plans, Engineering Plans and Lot Classification did not provide sufficient information to enable the identification, assessment, and management of the risks associated with the uncontrolled collapse of an excavation along the eastern boundary.

5. The Lot Classification Report could not be used to identify, assess, or manage the risks associated with the uncontrolled collapse of an excavation along the eastern boundary.

6. Shoring of the eastern boundary excavation was reasonably practicable and should have been designed in accordance with geotechnical and structural engineering advice, which should have been sought prior to site excavation.

Relevant Guidance Materials and Statutory Obligations

33. The relevant guidance materials are set out in pars 71-74 of the Agreed Statement of Facts (ASOF).

Systems of Work Prior to the Incident

34. Prior to the incident, Bellabrae did not conduct a risk assessment or identify hazards and control measures in relation to the excavation of site, including excavation of the earthen wall and of the trench toward the eastern boundary.

35. Prior to the incident, Bellabrae did not consult with, or obtain advice from a competent person in relation to whether the earthen wall, as excavated, was self-supporting, or needed additional control measures such as battering, shoring and/or piling. Nor did they consult with a competent person in relation to the design of such control measures needed to support the earthen wall.

36. Bellabrae requested and received an engineering report from Meares, which provided structural engineering design documentation. Bellabrae did not ask Meares to include in its report documentation or engineering advice, information in relation to temporary support for excavators such as battering or shoring or piling of the earthen wall formed during the excavation.

37. The Meares Structural Plans dated 29 April 2022 – Revision F and G dated 3 June 2022 provided under the heading “Shortcrete”:

“Where directed on site, the contractor shall provide shortcrete protection to areas of the rock face as excavation proceeds” and “the shortcrete shall be continuously applied in one continuous application… .”

38. Excavation of soil introduces stresses and reduces the strength of the soil. The earthen wall formed by the excavation of the site was not supported by any retaining structure by use of appropriate battering, shoring and/or piling, and it was at an angle greater than the natural angle of repose of the soil, causing further instability to the soil.

39. The soil encountered on the day at the site was not consistent with the ground conditions referenced with the Idealgeotech report obtained in February 2022. Brick and other materials not part of original soil structure was located in the collapsed material. There was also no fill in the soil.

40. The qualities of the fill material along the eastern boundary were not assessed by Bellabrae in relation to slope stability, and subsequently the qualities of the natural soil and/or fill to resist failure by sliding or collapsing were unknown.

41. Prior to the incident, Mills & Watson had a Safe Work Method Statement (SWMS) – Plumbing, drainage, stormwater, excavation and associated works dated 22 May 2022, purportedly electronically signed by workers, including Mr Sloane on 24 June 2022 (after the incident). It states the following with respect to the activity of working in or near excavations:

1. Excavations deeper than 1.5m must be benched, battered or shored in line with the Soil type.

2. Workers are not to enter trench before benching, battering or shoring of the earthen wall until a competent person or Engineer has deemed it safe to do so.

3. Trenches to be barricaded and sign posted.

42. The SWMS did not contain an assessment of the risk of injury to persons working in the vicinity of a previously excavated earthen wall, and/or excavating a trench in the vicinity of a previously excavated earthen wall.

43. Mr Nicol and Mr Sloane both state that they had not been provided with a SWMS for the job being completed on the day of the incident, nor had they seen any engineering structural plans before commencing work on the site.

44. Prior to the incident, Bellabrae did not provide Mills & Watson with relevant information regarding the stability of the earthen wall and control measures to prevent collapse of the earthen wall. Bellabrae also did not enforce a safe work procedure for undertaking excavation work at the site including the excavation of the trench and ensuring that the earthen wall was adequately supported.

45. Mr Godwin was not provided with any dimensions to excavate the trench, or any structural plans or engineering reports. Nor did he previously have any interaction with Mr Mills or Mr Jitla regarding the job.

46. Mr Godwin could not support the trench by benching whilst it was being excavated due to its proximity to the neighbouring property.

47. Prior to the incident, Bellabrae did not prohibit work from being undertaken inside or alongside the trench next to the earthen wall, until control measures were in place to protect workers against risk of collapse or partial collapse.

48. No prestart job site inspection or risk assessment was undertaken before excavating the trench, nor were workers provided with adequate information or instruction or training in relation to digging the trench at the site. Prior to the incident, Mills & Watson also did not have a safe work procedure in place for the excavation of the trench, nor was supervision provided to workers excavating the trench.

49. The site inspection conducted by Mr Jitla and Mr Mills did not consider either the fill material visible in the earthen wall, or the lack of visible support means of the earthen wall.

50. Mr Nicol and Mr Sloane both state that they had not been provided with a SWMS for the job being completed on the day of the incident, nor had they seen any engineering structural plans before commencing work on the site.

Systems of Work after the Incident

51. Following the incident, Bellabrae:

1. Undertook an investigation and completed an incident report.

2. Requested that Meares provide a safe work procedure and implemented the recommend controls including:

1. Excavating along the southern and western side steps of no more than one metre.

2. Shotcrete the exposed excavation on the eastern side boundary.

3. Construct required block retaining wall on the concrete slab.

3. Engaged Housing Industry Association in creating a full Safety System.

Sentencing Principles

52. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

53. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”

Risk

54. The risk as outlined in annexure A of the Amended Summons is set out as follows:

“The risk was the risk of workers, in particular Mr Sloane and Mr Nicol, suffering serious injury or death as a result of the collapse or partial collapse of an unsupported earthen wall in the vicinity of the trench when they were working alongside or inside the trench.”

Objective Seriousness of the Offence

55. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…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 offending.”

56. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

57. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

58. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

59. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

60. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible:  Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

61. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

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

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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 upon an assessment of all those factors.”

63. His Honour further observed at [42]:

“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 pressure event of the force 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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

64. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

65. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature:  R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

66. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence:  WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

67. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize:  Nash v Silver City Drilling at [34].

2. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [34].

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:  Nash v Silver City Drilling at [34] and [53].

4. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

5. Whether the risk was an obvious or clear one.

6. The vulnerability of the workers exposed to the risk:  SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).

68. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of the risk.  In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

Matters that are Relevant to Determining the Culpability of the Defendant

69. The critical failures are identified in the ASOF at [40]-[53], being failures to take advice. I accept that it was these failings that ultimately led to the crystallisation of the risk and Mr Sloane’s tragic injuries.

70. The risk of collapsing trenches and earthen structures is well known. These are set out in detail in par 71 of the ASOF which highlights the sections of the Code of Practice – Excavation Work (January 2020) that was available to Bellabrae at the time. There was a large amount of guidance material available to Bellabrae, as quoted in the ASOF.

71. The photographs contained within the PSTB also demonstrate the quality of the soil being excavated, and which soil contained fill in the form of bricks, rocks and rubble. Paragraph 57 of the ASOF states:

“The property next door land was fill…was not natural ground… with a lot of rock in it.”

72. Inspector Walker produced an expert report, set out in par 48 of the ASOF, in which he opines:

“Shoring of the eastern boundary excavation was reasonably practicable and should have been designed in accordance with geotechnical and structural engineering advice, which should have been sought prior to the site excavation.”

73. The system of work that Bellabrae had prior to the incident, together with the failures within that system of work are set out at pars 46 to 70 of the ASOF.

74. I accept that the failures in the system of work exposed persons working in and around the trench to a serious risk of serious injury or death. Further I accept that the steps necessary to ameliorate that risk are set out in Annexure A to the Summons.

75. I do however accept that there was nothing deliberate about it and the defendant did not, at any stage, act with a contumelious disregard of appropriate safety practices.

76. I accept that there is no evidence of a pattern of behaviour where safety obligations were routinely disregarded. This is demonstrated in Mr Jitla’s affidavit at pars 17-23.

77. I further accept that whilst Bellabrae fell short of its obligations in the circumstances which are the subject of the charge, this does not mean that its efforts to ensure workers’ safety should be ignored. I accept that this is not a case where no steps to ensure workers’ safety were taken at all.

78. Bellabrae took a number of steps following the incident to attempt to ensure that the offending conduct would not occur again. This included:

1. Undertaking an investigation into the incident and completing and incident report.

2. Requesting a safe work procedure and implementing the relevant controls.

3. Engaging an external body, namely the Housing Industry Association, to create a “Full Safety System Directory”.

79. Additionally, Mr Jitla deposes (see exhibit 1, pars 24 and 25) that he has implemented a number of system improvements, including:

1. Changing company processes to ensure that Bellabrae checks all subcontractors have trained their workers and that those workers have been provided with an appropriate induction.

2. Updating the site inspection checklist.

3. Obtaining an updated safe work procedure from Meares and taken steps to ensure the site was safe moving forward.

Deterrence

80. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

81. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace:  Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

82. When examining matters of deterrence, both specific and general deterrence apply:  R v Miria [2009] NSWCCA 68.

83. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

84. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

85. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

86. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

87. The excavation industry is a notoriously dangerous industry. The building work carried out by Bellabrae continuously requires preliminary excavation work. Even though residential building work does not generally require the development of large sites, there is still a need to continually bring to the mind of those conducting the work that there is a risk to those workers needing to perform work in close proximity to unrestrained earthen structures, and that those structures may collapse causing serious injuries or fatalities.

88. The need to obtain specialised advice to overcome the risk of an earthen wall collapse needs to be emphasised to the residential building industry.

89. This is of particular importance when young inexperienced and/or untrained workers are required to work in and around trenches or unrestrained earthen structures. This general deterrence is important to highlight these matters to the industry.

90. It appears that Bellabrae continues to perform the same works, and the ASOF would suggest that Bellabrae had little regard to the risks that may confront the employees of the plumbing subcontractor.

91. Therefore, specific deterrence is an important matter to ensure that Bellabrae keep to the forefront of its site planning and preparation the requirement that persons performing the work on site are able to do so safely.

Aggravating Factors

92. The prosecutor submits that there are no aggravating factors, which I accept: s 21A(2)(g) of the Sentencing Act.

Mitigating Factors

93. The defendant has not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the degree of leniency due to its good record.

94. I accept that the Mr Jitla is a corporate citizen of good character and has made significant charitable contributions to the community: s 21A(3)(f) of the Sentencing Act.

95. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all - it had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the tasks as required.

96. I accept that the defendant has demonstrated a strong commitment to workplace safety and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

97. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

98. The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

99. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

100. The prosecutor seeks an adverse publicity order pursuant to s 236 of the WHS Act, such order being in the form of Annexure A to the affidavit of Natalie Martin affirmed on 23 April 2025, to be published in the Master Builder Magazine in either edition 3 or 4 of 2025. Bellabrae does not oppose that order.

Penalty

101. I make the following orders:

1. Bellabrae is convicted.

2. The appropriate fine is $300,000 and that will be reduced by 25% due to the early plea.

3. Accordingly, Bellabrae is to pay a fine of $225,000.

4. I direct Bellabrae to make an adverse publicity order pursuant to s 236 of the WHS Act, such order being in the form of Annexure A to the affidavit of Natalie Martin affirmed on 23 April 2025, to be published in the Master Builder Magazine in either edition 3 or 4 of 2025.

5. The prosecutor is to receive a moiety of 50% of the fine.

6. The defendant is to pay the prosecutor’s costs as agreed or assessed.

*****

Amendments

23 July 2025 - Par 2 amended to read s 19(1)

Decision last updated: 23 July 2025