SafeWork NSW v Civil 1 Pty Ltd (No 2)

[2025] NSWDC 237

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Civil 1 Pty Ltd (No 2) [2025] NSWDC 237

Hearing dates:

27 June 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Civil 1 Pty Ltd is convicted.

2   I impose a fine of $90,000.

3   I order that the offender pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine imposed, is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Thangavelautham [2016] NSWCCA 141

SafeWork NSW v Civil 1 Pty Ltd [2025] NSWDC 82

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Civil 1 Pty Ltd (Offender)

Representation:

Counsel:
M Moir (Prosecutor)
M Shume / E Aitken (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Colin Biggers & Paisley (Offender)

File Number(s):

2022/245054

Publication restriction:

None

Judgment

Introduction

1. Civil 1 Pty Ltd (the offender) appears for sentence after being convicted at trial of an offence under s 197 Work Health and Safety Act 2011 (the Act).

2. The Court’s reasons for the finding of guilt are set out in the decision: SafeWork NSW v Civil 1 Pty Ltd [2025] NSWDC 82 (the verdict judgment). This judgment assumes familiarity with the verdict judgment and adopts the defined terms used in the verdict judgment.

3. The maximum penalty for the offence is a fine of $588,540 (5,770 penalty units).

Facts

4. The factual findings are set out in the verdict judgment. I have taken all of those findings into account in coming to the appropriate sentence. What follows is a summary of the relevant factual findings in the verdict judgment to permit an understanding of the sentence imposed.

5. The offender was the principal contractor for demolition of nine commercial buildings located at 108-118A Mann Street, Gosford (the site). It was a requirement of the development approval for the site, that Type A hoarding be affixed to the scaffolding facing Donnison and Mann Streets, to protect individuals using the footpath on those streets from flying debris and dust generated by the demolition work. At about 3.00pm on 20 August 2020, 21 bays of the scaffolding measuring about 60m in length was blown over by the high winds that had been predicted for that day, injuring a bystander and damaging a large number of vehicles parked on Mann Street and assorted infrastructure.

6. On 20 August 2020, Inspector Kearney of SafeWork NSW attended the site and had a conversation with Mr Giovenali about the demolition work that was left to perform and how it could be undertaken safely without the hoarding place. In particular, Inspector Kearney was concerned about how the defendant would demolish the concrete slab close to Mann Street using excavators without creating a risk of flying debris that could injure pedestrians using the footpath. At the time the scaffold had been replaced with temporary cyclone wire fencing along Mann Street, that was not covered with Unimesh or similar.

7. Inspector Kearney issued a prohibition notice (7-380943) to Mr Giovenali using a mobile device. The prohibition notice:

1. directed that “all demolition work within 9 metres of the boundary adjacent to Mann Street” stop until an Inspector was satisfied that the risk had been remedied;

2. identified the risk of injury to workers and other persons being hit by falling or flying objects as a result of an excavator being used to demolish concrete and bricks adjacent to the footpath of Mann Street; and

3. required:

1. the elimination of the risk to workers and other persons by providing adequate hoarding;

2. the development of a demolition plan for the remaining work identifying the risks and control measures for the area adjacent to Mann Street; and

3. Inspector Kearney to be satisfied that the prohibition notice had been complied with.

8. Inspector Kearney took a number of photographs on 20 August 2020 for the purpose of identifying the area that the prohibition related to. In his discussion with Mr Giovenali, Inspector Kearney identified a series of concrete footings running parallel to Mann Street in the north-eastern corner of the site. He identified in his discussion with Mr Giovenali that the 3^rd footing in from Mann Street was about 9m from the edge of the footpath and marked the area where the work was to be prohibited. In his notes made on the day, Inspector Kearney wrote that the prohibition area was 9m from Mann Street and he included the entry “(3^rd footing)”.

9. Inspector Kearney then took a number of photographs standing on a line that was about 9m from the footpath on Mann Street. The first photograph was taken facing north and depicted the 3^rd footing that ran perpendicular to a building that was not being demolished on the northern boundary of the site. The second photograph was taken facing east from the 9m line towards Mann Street. The third photograph was taken from the 9m line facing south-east towards the south-eastern corner of the site.

10. In his recorded interview with the Inspectors, Mr Giovenali stated that he understood that the prohibition notice provided for a prohibited area but he believed that the prohibition only applied to using a hammer to break up concrete that created a risk of flying debris that could be mitigated by putting up mesh on the temporary fencing, and that otherwise the site was open.

11. At about 3.24pm on 26 August 2020, Inspector Kearney observed from the SafeWork office on Donnison Street, two excavators that he believed were operating on the site closer than 9m to the footpath on Mann Street. Inspector Kearney gave evidence that at the time, he saw pedestrians using the footpath on Mann Street and that he saw and heard an excavator using a hammer attachment to break up concrete. Inspector Kearney then took two videos of what was occurring on the site and a number of photographs before going down to the site.

12. When Inspector Kearney arrived on site he saw that one of the excavators had moved out of the prohibited area and the other was still in the prohibited area and sifting through debris using a sifter attachment. The other excavator was fitted with a ripper attachment and was moving pieces of concrete out of the prohibited area.

13. Inspector Kearney asked the workers to stop work and had a discussion with Mr Stelio.

14. Inspector Kearney observed in the prohibited area that the concrete slab along the boundary had been broken up and some of the footings had been removed near the northern boundary wall of the site. Inspector Kearney laid out his measuring tape and took a photograph of it, depicting that some of the demolition had occurred within 4.6m of the footpath on Mann Street. Inspector Kearney did not observe any control measures in place to eliminate or minimise the risk to pedestrians or motorists on Mann Street and no contact had been made with him to seek confirmation that the prohibition notice had been complied with.

15. On 28 August 2020 the remaining work in the prohibited area was permitted to be undertaken after the offender installed Unimesh on the temporary fencing.

The Offender’s Case on Sentence

16. The offender relied on an affidavit of Robert Zeait, the sole director of the offender, sworn 12 June 2025. Mr Zeait was present in Court but was not required for cross-examination.

17. Mr Zeait, on behalf of the offender, stated that it accepted responsibility for the breach of the prohibition notice and expressed remorse for failing to implement any control measures when completing work on 26 August 2020 within 9m of the Mann Street boundary. Mr Zeait stated that he understood that the prohibition notice was issued to manage the risk to pedestrians from flying debris during the removal of concrete slabs and footings adjacent to Mann Street. On 28 August 2020, the required steps were taken to install Unimesh on the perimeter fence and thereafter work was allowed to continue.

18. The offender was incorporated on 8 August 2011 and has provided demolition and other services since that time.

19. The offender had in place a safety management plan, a demolition management plan and a Safe Work Method Statement for the demolition work at the site. It engaged specialist contractors to carry out work at the site, that its workers were not qualified to perform, including a scaffolding contractor.

20. Mr Zeait deposed that during the course of the demolition work, that the offender had co-operated with SafeWork NSW.

21. Mr Zeait deposed that the offender has no prior WHS convictions.

Consideration

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

Objective Seriousness

23. The offence involves some objective gravity.

24. There was a risk posed to pedestrians using the footpath on Mann Street and any workers on foot in the vicinity from flying debris during the removal of concrete slabs and footings adjacent to Mann Street. The demolition of some concrete slabs and footings was undertaken after the prohibition notice was issued without proper control measures being implemented to eliminate or minimise the risk.

25. The control measures to be implemented were simple, convenient and known to the offender and identified in the safety documents for the site. The work conducted in breach of the prohibition notice was carried out when Mr Giovenali, the offender’s site supervisor was aware of it, the reasons for it and the prohibited work area. The breach occurred in close proximity to the SafeWork NSW office and in the circumstances was somewhat flagrant. I infer that the prohibition notice was breached because it suited the convenience of the offender to carry out the work at that time.

26. There is no evidence that any individual was exposed to a risk of serious injury or death from the work carried out in breach of the prohibition notice, but that is not a mitigating feature. The Act is directed to the elimination of risk. The risk that was posed was a risk of personal injury to members of the public and workers on foot in the vicinity of the work. I am not satisfied beyond reasonable doubt that the risk included a risk of death.

27. Prohibition notices are an important way of enforcing compliance with the Act and they must be strictly enforced in order to achieve the objects of the Act.

28. I have taken into account the maximum penalty for the offence.

Deterrence

29. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

30. There is some need for specific deterrence in this case because the offender still operates in a dangerous industry where its workers are exposed to risks on a daily basis and it will continue to be subject to observation and direction by SafeWork inspectors.

Aggravating factors

31. There are no relevant aggravating factors.

Mitigating factors

32. The offender does not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2011 and has operated continuously in a dangerous industry, without incident.

33. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied by reference to the evidence of Mr Zeait that the offender has accepted responsibility for the offence and learnt from it.

34. The offender, through Mr Zeait, has accepted responsibility for the offence and expressed remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. At trial, the offender unsuccessfully sought to establish the defence of honest and reasonable mistake of fact, by relying on the evidence of Mr Giovenali, which I rejected. The offender has accepted the Court’s findings in the verdict judgment. I am satisfied that the mitigating factor is established, but it must be afforded less weight than if it had been made in connection with a plea of guilty.

35. The offender conducted the trial in a manner that reflected a willingness to facilitate the course of justice: R v Thangavelautham [2016] NSWCCA 141 at [58] (Bathurst CJ). There was a lengthy Agreed Statement of Facts and the offender allowed many of the witnesses’ Records of Interview to be tendered without requiring them for cross-examination.

36. I am not satisfied that the offender co-operated with the investigation, because the offence was committed during the initial investigation.

Capacity to pay a fine

37. The Court is required to have regard to s 6 Fines Act 1996 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: Jahandideh v R [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.

38. The offender did not contend that it had a limited capacity to pay a fine.

Costs

39. The offender was successful in defending the s 32 offences and is entitled to its costs of those proceedings.

40. The prosecutor was successful in proving the s 197 offence and is entitled to its costs of those proceedings.

41. I will make orders on the usual basis with the ultimate result to be determined by agreement or by a costs assessor, because the parties were not in a position to fully argue whether it was appropriate to make a proportional costs order.

42. However, it is appropriate to record my views of how the case was conducted, in the event that they become relevant matters for a costs assessor to take into account.

43. The s 32 offences were far more serious than the s 197 offence and the majority of the evidence compiled and served by the prosecutor related to the proof of those offences. The offender co-operated in the narrowing of the issues in the s 32 offences by agreeing to a detailed set of agreed facts. The offender agreed to the tender of a large number of witness statements without the need for those witnesses to be cross-examined.

44. Large portions of the prosecutor’s case were not sustainable in the light of the agreed facts. Even after the facts were agreed, the prosecutor persisted with a lengthy opening of the case on issues that were doomed to fail. A belated amendment application was then made which was unsuccessful.

45. The offender was successful in defending the s 32 offences, which I anticipate would have taken up a considerable proportion of the time involved in the preparation of the case. The s 32 offences occupied most of the hearing time notwithstanding that the majority of the oral evidence related to the s 197 offence.

Penalty

46. Civil 1 Pty Ltd is convicted.

47. I impose a fine of $90,000.

48. I order that the offender pay the prosecutor’s costs of the proceedings, as agreed or assessed.

49. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine imposed, is to be paid to the prosecutor.

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Amendments

27 June 2025 - (No 2) inserted in Case Title

Decision last updated: 27 June 2025