SafeWork NSW v Galvatech Pty Ltd

[2025] NSWDC 73

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Galvatech Pty Ltd [2025] NSWDC 73

Hearing dates:

13 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $300,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $225,000.

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

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, agreed in the sum of $40,000 plus GST.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition

COSTS – prosecutor’s costs

COSTS – capacity to pay - s 6 of the FinesAct1996 – onus of proof

Legislation Cited:

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

Criminal Procedure Act 1986 (NSW), s 257B

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 46, 274

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

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188

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

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100

Inspector Fraser vKarabelas(No 2) [2011] NSWIRComm 153

Jahandideh v R [2014] NSWCCA 178

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

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

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

McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353

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

R v Youkhana [2004] NSWCCA 412

Rahme v R (1989) 43 A Crim R 81

SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299

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

SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182

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

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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 Construction Work (August 2019)

SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, 2019

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Galvatech Pty Ltd (Defendant)

Representation:

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

Solicitors:
Department of Customer Service (Prosecutor)
Gilchrist Connell (Defendant)

File Number(s):

2024/49134

Publication restriction:

Nil

JUDGMENT

1. Galvatech Pty Ltd (the defendant) has pleaded guilty to the following offence:

That as a person who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the WHS Act), failed to comply with that duty and thereby exposed workers, including Mohammad Bilal Chaudhary (Mr Chaudhary), to a risk of death or serious injury contrary to s, 32 of the WHS Act.

2. The maximum penalty for a s 32 offence at the relevant time for a body corporate is $1,782,579.25.

3. The Prosecutor tendered the Prosecution Sentence Tender Bundle (PSTB) which became exhibit A. The defendant tendered an affidavit of Darren Bagley (Mr Bagley) sworn on 26 February 2025 which became exhibit 1.

4. The Agreed Statement of Facts (ASOF) is summarised below.

Background

5. The Defendant was a registered corporation with its registered address and principal place of business at 1 Wordie Place, Padstow NSW 2211 (the site), and it operated galvanising operations, employing approximately 46 workers at the site.

6. The defendant, at all material times, engaged BI Australia (BI), a registered corporation, registered address at 178 Wilbur Street, Greenacre, NSW 2190, to provide workers, including forklift operators, on a labour hire basis at the site.

7. BI’s principal place of business was 16/22 St Albans Road, Kingsgrove, NSW 2208, and employed over 30 workers.

8. Mr Chaudhary was employed by BI as a casual forklift operator and had obtained a forklift truck operators licence in December 2021. His work included lifting loads and working as a “checker”, which involved checking the content of deliveries and loads, and marking associated tags.

9. On 24 January 2022, Mr Chaudhary commenced work for the defendant. Prior to that, he had not operated a forklift truck. Shortly after commencing work for the defendant, Mr Chaudhary was assessed as an inexperienced forklift operator and his primary role whilst working for the defendant was a “checker”. At all material times, Mr Chaudhary was placed by BI at the site to work for the defendant as the host employer.

10. Mr Chaudhary commenced work at the defendant’s premises on 24 January 2022. Mr Manson commenced work at the defendant as a forklift driver operator.

The Incident

11. At around 2.46pm on 11 February 2022, Mr Chaudhary was working for the defendant at the site. As he was walking in a car park which was also being used as a makeshift storage area, Mr Matthew Manson (Mr Manson), who was employed by BI, was operating a forklift truck in that area. Mr Chaudhary approached Mr Manson from behind while Mr Manson was reversing on the forklift. Mr Chaudhary mistakenly believed that Mr Manson could see him while reversing the forklift.

12. The forklift that Mr Manson was reversing struck Mr Chaudhary and ran over his leg, trapping him underneath the forklift. Mr Manson then drove the forklift forward and off Mr Chaudhary’s leg. Mr Manson did not hold a high-risk work licence to operate a forklift truck at the time of the incident.

13. Some of the warning lights on the forklift were not operating correctly at the time of the incident. Mr Chaudhary suffered a broken leg and other injuries. He required surgery, orthotics and extensive rehabilitation.

Available Guidance Material

Code of Practice

14. Prior to the incident, SafeWork NSW had published the 2019 Code of Practice: Managing the Risks of Plant in the Workplace (the Code). The Code is admissible under s 274 of the WHS Act and provides information regarding risks, hazards, risk assessment and risk control.

15. The Code provides that “Plant” includes forklifts (p 5). The primary duty of care under s 19 of the WHS Act includes ensuring so far as reasonably practicable:

1. The provision and maintenance of safe plant.

2. The safe use, handling, storage and transport of plant (p 6).

16. The Code also provides at pp 6, 11, 13, 15, 16 and 26, a further duty of care in relation to work conducted, which includes but is not limited to:

1. Consulting workers about health and safety.

2. Ensuring workers are trained and have appropriate skills to carry out particular tasks safely.

3. Identifying hazards in the workplace which may potentially cause harm, including plant itself and traffic movements in the workplace, such as reversing.

4. Conducting risk assessments to determine whether existing control measures are effective, and what actions should take place to control the risk.

The Work Health and Safety Regulation 2017

17. The Work Health and Safety Regulation 2017 (the Regulation) requires duty workers to work through a hierarchy of control measures when managing risks to health and safety associated with plant. Specific controls are required under the Regulation for certain type of plant including powered mobile plant (p 16).

18. Persons conducting a business or undertaking must not direct or allow a worker to carry out high risk work without the relevant licence. Evidence must be provided by the worker for permission to be granted for them to conduct high risk work (p 26).

Prior to the Incident

19. Prior to the incident, on 3 February 2020, Safe Work Australia had published the Labour hire: duties of persons conducting a business or undertaking guide (the Labour Hire Guide), which was available online prior to the incident.

20. The Labour Hire Guide provides a duty of care relating but not limited to the following:

1. All labour hire PCBUs and host PCBUs have a primary duty of care to ensure so far as reasonably practicable, the health and safety of PCBU workers.

2. All duty holders in a labour hire arrangement must consult, cooperate and coordinate with each other so far as is reasonably practicable.

3. Before engaging labour hire work, PCBU should verify that the workers have the necessary qualifications and/or licences to carry out works safely.

4. Prior to placing labour hire workers, PCBU should gather information in relation to the work, workplace, health and safety risks, and any skills or knowledge that workers require prior to undertaking work.

Galvatech

21. The defendant had work health and safety policies in place, however, these were not readily available to the workers. The defendant did not address the safe use of forklifts in the car park area, nor did it address the need for high-risk licence holders for such high-risk work.

22. A risk assessment was conducted for the operation of forklifts but did not address the risk of being struck by a forklift. Moreover, it was not provided to workers as part of their training and induction to the site.

23. The defendant did not develop, implement and enforce a specific system for ensuring that all workers at the site operating forklifts held the required high-risk licences, and that those who did not hold such a licence were not permitted to operated forklifts.

BI

24. BI did not:

1. Inquire, not have a process of inquiry, with the defendant in relation to health and safety risks prior to placing MC at the site.

2. Undertake risk assessment in relation to the operation of forklift trucks, including when the forklifts are not operating correctly and/or being operated by unlicenced operators.

3. Assess or request that the defendant assess the workers’ competency to operate forklift trucks at the site or provide training or instruction to the workers relating to the nature of their work.

4. Undertake a comprehensive risk assessment of the site, extending to the risks of operating forklift trucks.

Actions Taken after the Incident

25. In response to the incident, SafeWork NSW issued a number of notices relating to the risk which have been complied with. Six notices were issued to the defendant and two notices to BI.

Notices Issued to the Defendant

26. The notices issued to the defendant related to a range of risks, including: the absence of a traffic management plan, the absence of a system for ensuring workers held high-risk work licences, inspection of forklift trucks, and identification of defects on a forklift.

The Defendant’s Response to the Notices

27. In response to the abovementioned notices, the defendant took a number of actions, including: hiring a contractor to create a site-specific traffic management plan, having the forklift serviced, and implementing a system for ensuring workers operating high risk plan held the appropriate high-risk licence.

28. Section 46 of the WHS Act provides:

“46 Duty to consult with other duty holders

If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.”

29. Referring to s 46 of the WHS Act, the SafeWork NSW Code of Practice Construction Work (August 2019) states at p 14:

“Since various contractors and subcontractors work on the same construction site, their activities are likely to overlap and interact with each other. They each have a duty to protect the health and safety of workers and other persons at the workplace and must therefore consult, cooperate and coordinate activities to ensure each person is made aware of what the others are doing, to identify the hazards and risks and decide who is best placed to take action to control the risks.”

Systems of Work After the Incident

30. 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.

31. 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.”

Objective Seriousness of the Offence

32. 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.”

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

34. 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.

35. 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.

36. 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].

37. 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.

38. 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].

39. 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.”

40. 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.”

41. 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.

42. 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).

43. 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).

44. 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].

45. 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].

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

2. 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].

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

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

5. 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).

46. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of.  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 Relevant to Determining the Culpability of the Defendant

47. The nature of the risk was plain, namely, the risk of a worker being seriously or fatally injured as a result of being struck by industrial lift trucks such as forklifts in operation at the site.

48. As conceded in the defendants written submissions (par 13) the defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers generally, and in particular Mr Chaudhary, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the Risk:

1. Conducting a risk assessment that properly identified the Risk.

2. Developing and implementing a safe system of work for the operation of forklifts at the site.

3. Having a system in place for mobile plant at the site including the forklift, to ensure safety features such as warning lights were operating properly.

4. Developing and implementing a site-specific traffic management plan for preventing pedestrians at the Site from coming into contact with forklifts and other industrial lift trucks.

5. Having a system in place for ensuring that all workers were provided with appropriate instruction concerning the traffic management plan.

6. Providing workers at the site with information, training, instruction and supervision in relation to safe forklift truck operation.

7. Having a system in place for ensuring that other duty holders, such as BI, were consulted regarding risks to workers health and safety in relation to the use of the forklift trucks at the site.

8. Developing and implementing a process for ensuring that all workers health at the site who operated the Forklift held the required high risk work licence.

9. Directing workers at the site not to operate the forklift unless they held the required high-risk work licence.

49. Any industry where there is heavy plant and persons moving around in the same area (here where it was effectively used as a storage area/car park) is a notoriously dangerous component of an industry in part because the industry involves the interaction of humans with large and heavy machinery and items. These present circumstances highlight the need for caution on work sites such as the defendant’s premises, including the obvious need to ensure people are not put in harm’s way when moving heavy items around a work site.

50. The admitted admissions of the defendant are contained in par 10 of Annexure A to the Summons. The particularised measures are admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, that gave rise to Mr Choudhary being exposed to the risk to his health and safety. These are simple and straightforward remedial steps that could have been taken by the defendant to eliminate the risk to safety.

51. In the circumstances of this offending, the likelihood of the risk occurring could not be classed as moderate or low due to the extent of failures on part of the defendant to guard against it. Forklifts were being operated at the site in circumstances where proper safety measures were not in place.

52. The defendant concedes that it failed to ensure, so far as is reasonably practicable, the health and safety of workers generally, and in particular Mr Chaudhary, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the Risk:

1. Conducting a risk assessment that properly identified the Risk.

2. Developing and implementing a safe system of work for the operation of forklifts at the Site.

3. Having a system in place for inspecting mobile plant at the Site including the Forklift, to ensure safety features such as warning lights were operating properly.

4. Developing and implementing a site-specific traffic management plan for preventing pedestrians at the Site from coming into contact with forklifts and other industrial lift trucks.

5. Having a system in place for ensuring that all workers were provided with appropriate instruction concerning the traffic management plan.

6. Providing workers at the Site with information, training, instruction and supervision in relation to safe forklift truck operation.

7. Having a system in place for ensuring that other duty.

53. I accept that the defendant had in place work, health and safety policies and procedures however they were not readily available to workers. They did not address the safe use of forklifts in the car park area and did not address the need for forklifts to only be operated by the holders of required high-risk work licence.

54. The process in place that workers held the necessary licences at the site did not include a system for checking that labour hire workers coming onto the site (for example Mr Manson) possessed the necessary high-risk licences.

55. The forklift was not functioning correctly in that the warning lights fitted were not operating at the time of the incident.

56. The risk had been identified by the defendant because, during the safety induction workers were advised that “the main hazards in the workplace are the forklifts, cranes, and customer trucks and cars. Watch out for loads being carried by forklifts and cranes. Watch out for reversing forklifts and trucks”. Importantly, both Mr Chaudhary and Mr Mason were inducted to the site prior to commencing work and acknowledged the identified risk.

57. In addition, and consistent with its duty, the defendant developed and implemented a range of safety measures.

58. The defendant has accepted that there were further measures available to the defendant to minimise the risk. Specifically, a risk assessment which addressed the risk of being struck by a forklift; which is then provided to workers as part of their induction to the site and thereafter as part of ongoing meetings where work health and safety policies and procedures are discussed.

59. I further accept that whilst the defendant prohibited any worker from operating a forklift unless they held the necessary licence, and did have a system in place for ensure employees were in fact properly licenced, the system did not include a system for checking that labour hire workers coming onto the site possessed the necessary licence. Implementation of the system that was in place to include labour hire workers was a further step available to the defendant, and posed no additional burden, inconvenience or cost.

60. Of significance is the fact that the defendant was observing Mr Choudhary’s conduct on the work site, to the extent that the defendant ordered that he not drive the forklift due to the defendant being unsatisfied with his abilities to drive the forklift. This speaks very loudly that the defendant was observing the conduct of the workers, and took steps to remove those persons who demonstrated a lack of skill for the job they were hired to do. To my mind this is an example of the fact that the defendant had regard to the safety of those that entered the site.

Deterrence

61. 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.

62. 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).

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

64. 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.”

65. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and working, in particular with cranes, and bundles of steel reinforcement bars, which the industry itself would be described as hazardous.

66. 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.

67. 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.

68. 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.

Aggravating Factors

69. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

70. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

71. In Haynes v CI & D Manufacturing Py Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

72. The defendant was established in 1975 and incorporated in 1996. The defendant has no previous convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. This is a very impressive record and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions. I also note that the incident occurred shortly after the COVID 19 pandemic and after the defendant had engaged BI Australia for the purpose of supplying licenced forklift drivers. I note the defendant was experiencing increased demand for its services on the one hand, and declining workforce on the other.

73. I accept that the introduction of labour hire workers plainly exposed shortcomings in the defendant’s safety systems which had, up until that point, appropriately minimised the exposure to risk.

74. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contribute to the community: s 21A(3)(f) of the Sentencing Act.

75. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focussed 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 installation tasks.

76. The Prosecutor accepts that the defendant has good prospects of rehabilitation, as demonstrated by the steps that the defendant took after the incident: s 21A(3)(h) of the Sentencing Act.

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

78. I accept that the defendant has expressed genuine remorse, including an acknowledgement of the injuries caused as a result demonstrated its remorse and accepted responsibility for the offence, and frankly accepts that the incident should not have conferred and could have been prevented: s 21A(3)(i) of the Sentencing Act.

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

80. The defendant entered a plea of guilty to the 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.

Capacity to Pay

81. Section 6 of the Fines Act 1996 (NSW) provides as follows:

“6 Consideration of an accused's means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”

82. The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty:  McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24].

83. The offender’s capacity to pay is relevant but not decisive:  Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).

84. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]:

“The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:

‘[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50):

“It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.”

[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82):

“... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).”

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed:

“... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty …

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...”

[85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476:

“Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.”’”

85. 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.”

86. I accept this authority is relevant to these proceedings. The company consisted of four family members and has endured some financial hardship and could not be described as a “large corporation”.

87. The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that:

“It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty.”

88. It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the court has determined the appropriate fine(s).

89. I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows:

1. The financial position and means of a defendant should be taken into account when determining the fine to be imposed.

2. The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that it does not have the capacity to meet a fine.

3. It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be undertaken.

4. It is for the prosecutor to check the information provided by the defendant and to assist the Court in relation to the assessment of the defendant's capacity to pay.

5. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence:  Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].

90. The defendant tendered evidence setting out its financial position, and submitted that such evidence reflects a limited capacity to pay a fine. That evidence demonstrates that during 2020 and 2021, as a result of the COVID 19 pandemic, the defendant difficulty in trading. As a consequence of the pandemic, the defendant needed workers and so engaged BI to find workers for it.

91. I find it hard to accept that the business is not profitable and as not turned a profit since around 2020. The financial documents tendered by the defendant would indicate the opposite. These documents were titled “Galvatech Financial Analysis for years ending June 2018 to June ending 2024 and another documents indicating the state of the defendant’s financial affairs to date. It remains unexplained how those documents assist the defendant’s case, as it seems to me to indicate that the defendant’s profits have continued to increase each year after the end of the pandemic. The defendant did not provide any evidence as to the net value of any assets or property and thus the evidence is silent on this issue. A snapshot of the entity doesn’t assist me in assessing the financial capacity of the defendant.

92. I further do not accept that this is a small family company. It employs 46 workers and has turned over significant sums of money as profit.

93. The defendant has not discharged its onus, and I therefore decline to exercise my discretion under s 6 of the Fines Act.

94. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution:  Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).

95. However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.

96. The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so.  Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.

97. The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

98. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $300,000 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $225,000.

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

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs agreed in the sum of $40,000 plus GST.

**********

Decision last updated: 21 March 2025