SafeWork NSW v Metsquare Pty Ltd

[2024] NSWDC 84

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Metsquare Pty Ltd [2024] NSWDC 84

Hearing dates:

20 March 2024

Date of orders:

22 March 2024

Decision date:

22 March 2024

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $450,000.00.

(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, 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
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 – maximum penalties
COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority(NSW) (2000) 49 NSWLR 610

Environmental Protection Authority v Barnes [2006] NSWCCA 246

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

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

Latoudisv Casey (1990) 170 CLR 534

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

Markarian v The Queen (2005) 228 CLR 357

Morrison vPowercoalPty Ltd(No3) (2005) 147 IR 117

Muldrockv The Queen (2011) 244 CLR 120

Nash v Silver City Drilling(NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW vGrandcityConstructions Pty Ltd [2018] NSWDC 398

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

Veen v R(No 2) (1988) 164 CLR 465

WorkCover Authority(NSW) vProfabIndustries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority(NSW)vSarjameStorage Pty Ltd [2015] NSWDC 151

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Metsquare Pty Ltd (Defendant)

Representation:

Counsel:
Mr M Scott (for the Prosecutor)
No appearance for the Defendant

Solicitors:
Department of Customer Service (for the Prosecutor)
No appearance for the Defendant

File Number(s):

2021/235549

JUDGMENT

1. On 28 August 2021 at 10-18 Regent Street, Wollongong, Metsquare Pty Ltd (‘the defendant’), being a person conducting a business or undertaking (‘PCBU’) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (‘WHS Act’), to ensure, so far as is reasonably practicable the health and safety of workers engaged by it while the workers were at work in the business or undertaking, did fail to comply with that duty and thereby exposed workers, in particular Mr Anuwant Khumkhrong (‘Mr Khumkhrong’) to a risk of serious injury contrary to s 32 of the WHS Act.

2. The maximum fine for the offence is $1,500,000.00.

3. The defendant entered a plea of guilty to an Amended Summons on 25 September 2023 and an Agreed Statement of Facts (‘ASOF’).

4. The previous solicitor for the defendant filed a Notice of Ceasing to Act on 18 March 2024. I accept that as the defendant had been previously represented, and in particular at the time of the entry of the plea, and the filing of the ASOF, the defendant is aware of today’s sentence hearing, and does not appear before the Court.

5. The prosecutor provided a Prosecutor’s Sentence Tender Bundle (‘PSTB’).

BACKGROUND

6. Mr Khumkhrong was employed by the defendant as an apprentice carpenter. He commenced employment with the defendant in May 2017.

7. Mr Cameron Kouzan (‘Mr Kouzan’) was employed by the defendant as a Leading Hand. Mr Kouzan was the defendant’s supervisor on site at the time of the incident and was acting as the defendant’s foreman.

8. The project involved the supply and installation of formwork at a construction site at 10-18 Regent Street, Wollongong (‘the site’). The site concerned the construction of a 21-storey residential building.

9. The defendant was engaged by the principal contractor at the site, TDK Corporation Pty Ltd, to supply, install, complete, and certify all temporary and permanent formwork at the site. The work commenced at the site in August 2018.

10. At the time of the incident, construction on the building had progressed to the erection of the formwork floor (the deck) on level 16.

11. Various loose building material, including sheets of plywood, were positioned on level 16. A full sheet of unmarked plywood, measuring approximately 1200 x 800 mm, was positioned on the floor of level 16 (‘the plywood’).

12. The plywood sheet was nailed to the deck and was the same colour and material as the plywood deck on level 16.

13. The plywood was covering a column opening (‘penetration’) in the deck of level 16. The penetration was approximately 1000 x 400 mm and opened up to the floor below.

14. The plywood was not labelled or otherwise marked to indicate that it was covering a penetration. Below the penetration were 10 steel reinforced bars protruding from the concrete floor on level 15.

The Incident on 28 August 2019

15. On 28 August 2019, Mr Kouzan instructed Mr Khumkhrong to clean up the level 16 deck, so that it was ready for other tradespersons to come in.

16. At approximately 11:30am, Mr Khumkhrong entered level 16 and observed an open penetration which needed to be covered.

17. Mr Khumkhrong walked to the plywood, intending to cut it and use it as a cover for the penetration he observed. He believed the plywood was a spare sheet nailed down to prevent it being blown away in the wind. He did not know it was covering a penetration.

18. Mr Khumkhrong lifted the plywood and walked forward, falling into the penetration.

19. Mr Khumkrong fell 2.7 metres to level 15 below, landing on top of the steel reinforced bars protruding from the floor of level 15.

20. Co-workers assisted him off the bars and observed two of the yellow safety caps were missing or dislodged from the bars and one of the bars had penetrated through the upper leg of Mr Khumkhrong.

21. Mr Khumkhrong was provided first aid until emergency services arrived. He was then transported by ambulance to Wollongong Hospital.

Systems of Work

22. Due to high winds at the site, workers had been instructed to nail loose plywood to the deck.

23. Spare, nailed plywood could be distinguished from a nailed plywood penetration cover, as a plywood penetration cover was to be marked ‘penetration’. The plywood involved in the incident was not marked ‘penetration’.

24. Other plywood covers on level 15 and 16 were not marked ‘penetration’ as the defendant’s workers had developed the practice of not marking the covers, despite being aware of the need to do so.

25. The defendant had a Safe Work Method Statement (‘SWMS’) for the installation and dismantling of formwork decks, columns, walls, and condeck dated 28 May 2018.

26. This identified the risk of falls during the task of deck formation and provided that all voids were to be covered, monitored, and clearly marked.

27. This was not followed on the day of the incident as the plywood was not marked.

28. The defendant had a Standard Operating Procedure (‘SOP’) for Formwork dated 1 March 2017. Mr Khumkhrong signed this on 24 September 2018.

29. To control the risk of falls through column penetrations, the SOP provided that:

1. ‘Once a column has been cut, cover and secure the column penetration with a screwed down plywood cover and identify with ‘Danger peno below’ or ‘Metsquare blue peno cover’.

30. It also required a daily prestart inspection of work areas which was not conducted on the day of the incident.

31. Mr Colin Spicer (‘Mr Spicer’) was employed by the defendant as the site foreman, and he was not on site on the day of incident. Mr Spicer and Mr Kouzan had responsibility for ensuring that penetration covers were marked and screwed down, and were aware they were to be marked ‘Danger peno below’ as set out in the SOP.

32. The Safework Australia – Guide to Formwork dated July 2014 (‘Formwork Guide’) was available to the defendant at the time of the incident. In relation to the use of plywood covers for penetrations, it provides that plywood covers are not a satisfactory risk control. It provides further detail as to the need for any plywood covers to be brightly marked and distinguishable.

33. SafeWork NSW Code of Practice – Managing the Risk of Falls (‘the Falls Code’) commenced on 1 January 2012 and is an approved Code of Practice under s 274 of the WHS Act. It was available to the defendant prior to and at the time of the incident.

34. SafeWork NSW Code of Practice – Managing the Risk of Falls in Housing Construction (‘the Construction Code’) commenced on 18 July 2014 and is an approved Code of Practice under s 274 of the WHS Act. It was also available to the defendant prior to and at the time of the incident.

Systems of Work Following the Incident

35. After the incident, SafeWork NSW issued notices to improve and review the SWMS and compliance.

36. The defendant prepared and distributed a Hazard Alert following the incident. The Hazard Alert identified safety issues as the cause(s) of the incident.

37. It also contained a directive that adequate signage and securing of penetration covers were to be constantly reviewed.

38. The defendant prepared an amended SWMS dated 29 August 2019, which outlined that all penetration covers are to be fixed with screws.

Injuries

39. Mr Khumkhrong was transported by ambulance to Wollongong Hospital. As a result of the incident, Mr Khumkhrong received the following injuries:

• Wounds to the base of the penis and perineum;

• A transected urethra; and

• A left groin penetration injury involving a laceration approximately 4cm deep.

40. Mr Khumkhrong underwent surgery to attend to his groin injury and for the insertion of a wound drain and catheter to allow for urination.

41. The catheter remained attached to Mr Khumkhrong for a period of approximately three months.

42. The injuries sustained by Mr Khumkhrong caused ongoing impaired sexual function and psychological injury requiring medication.

The risk

43. The risk relevant to this offence is described in Annexure A to the Amended Summons in the following terms:

‘The risk was the risk of workers, in particular Mr Khumkhrong, suffering serious injury or death as a result of falling through the penetration to level 15 below.’

SENTENCING

44. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work: s 3 of the WHS Act.

45. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating, and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

46. 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.

47. 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

48. 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 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.’

49. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

50. The duties of the defendant require that it ensures 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.

51. 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 v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.

52. 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 (‘Capral Aluminium’) at [81].

53. 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.

54. 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 at [31].

55. 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 [2017] NSWCCA 96 (‘Nash v Silver City’). 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.’

56. 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.’

57. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [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] NSWCCA 272.

58. 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).

59. 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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

60. 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 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 at [34];

2. The availability of steps to eliminate or minimise the risk: Nash v Silver City 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 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; and

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

61. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

‘It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from 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:

62. This is not a defendant that comes before the Court with no safety systems in place or a complete disregard for the safety of workers in its business or undertaking.

63. The defendant had in place a SWMS relevant to the work being performed on 28 August 2019 which is found in paragraphs [44] to [48] of the ASOF.

64. Behind tab 5 of the PSTB is the SWMS for High-Risk Construction Work that was relevant at the time. Page 6 of that document states in part as follows:

‘All voids to be covered and securely fixed and constantly monitored by all form workers…

Service penetrations to have peno covers securely installed with Danger Penetration below clearly marked.’

65. Paragraphs [49] to [55] of the ASOF refer to a SOP of the defendant. That SOP appears behind tab 6 of the PSTB. Page 5 of that document states as follows:

‘Once column has been cut out, cover and secure the column penetration with a screwed-down plywood cover and identify with Danger peno below or Metsquare blue peno cover.’

66. Further below that entry appears the following:

‘All penetration voids to have cast in mesh.’

67. Further on in that document:

‘Ensure all bars are capped.’

68. Behind tab 10 of the PSTB is a Metsquare Hazard Alert. That Hazard Alert refers to the matter in question and states under the heading ‘Safety Issues’ the following:

‘Causes

• failure to follow SOP.

• failure to adequately identify penetrations (signage).

• failure to secure penetrations with screws.

• worker distracted from task.’

69. Further down the document under the heading ‘Discussion’ is the following:

‘This incident could have been avoided by undertaking the following:

• adequate signage/markings.

• service penetration to have covers clearly marked with “danger penetration”.

• secure penetration with screws.

• all service penetration to have penetration covers securely installed with screws and with no gaps visible.’

70. Behind tabs 7, 8 and 9 of the PSTB are guideline documents.

71. It is apparent to me that the defendant was plainly aware of the requirements set out in those guidelines as they were reflected in its internal documents and reiterated in its Hazard Alert document.

72. The reason for such guidance is the obvious risk to which workers in the building and construction industry are exposed in working with inappropriately or inadequately covered penetrations.

73. A further obvious hazard is the failure to cap all protruding reinforcing bars. Clearly not all the reinforcing bars on level 15 were capped, otherwise the injury suffered by Mr Khumkhong could not have happened.

74. The obvious nature of the risk when taken together with the defendant’s knowledge of that risk, and noting the contents of paragraph [42] of the ASOF that there were other penetration covers on levels 15 and 16 not marked in a proper way, the ease and small expense which was required to overcome the risk means that on any objective assessment the breach by the defendant is one that the prosecutor submits is in the mid-range of objective seriousness.

75. The reasonably practicable measures pleaded against the defendant in the Amended Summons at paragraph [16], and accepted by the defendant as part of its plea, would have involved little effort and minimal cost, and this is a factor that increases the objective seriousness of the offence by the defendant.

76. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant.

Deterrence

77. 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.

78. 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).

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

80. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016)  93 NSWLR 338 (‘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.’

81. 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 high-risk work that is regularly performed in the building industry. The circumstances where workers are working in the construction industry, and working at height performing high-risk work is an extremely dangerous situation, and the industry must understand this so that it heightens their responsibility to ensure the safety of workers.

82. 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.

83. 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.

84. 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. However, in these proceedings the ASIC summary of the Corporation, which appears behind tab 13 of the PSTB would appear to show that the defendant has gone into, and come out of, a period of administration having reached a deed of company arrangement.

85. The prosecutor indicated that he understands that the company has not operated since entering into the deed of company arrangement on 16 August 2023. Further, the prosecutor indicates that he understands that it is the intention of the defendant to sell the assets of the company to an external purchaser following this matter being concluded.

86. In those circumstances I believe that there is little work to be done by the application of specific deterrence in this matter.

Aggravating factors

87. 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).

88. Mr Khumkhrong suffered serious injuries, and this is an aggravating factor.

89. The defendant’s offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act.

Mitigating factors

90. In Haynes v CI & D Manufacturing (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.'

91. The offending was not part of a planned or organised criminal activity: s 21A(3)(b) of the Sentencing Act.

92. The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act.

93. The defendant entered a plea of guilty which demonstrates remorse, and the prosecutor submits that it is open to me to find that the defendant is entitled to the maximum discount on that basis. Further, the defendant entered the plea at a reasonably early stage. Thus, 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 & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

Costs

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) 170 CLR 534 at 543 (Mason CJ).

95. 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 them, and I have taken this into consideration.

96. 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

97. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $450.000.00.

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, as agreed or assessed.

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Decision last updated: 22 March 2024