SafeWork NSW v Paul Whitmarsh (No. 4)

[2025] NSWDC 274

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Paul Whitmarsh (No. 4) [2025] NSWDC 274

Hearing dates:

3 July 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Paul Whitmarsh was convicted on 3 July 2025.

(2)   Order Paul Whitmarsh to pay a fine of $300,000.

(3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(4)   Order each party to pay its or his own costs of and incidental to the interlocutory hearings held on 13 March 2025 and 26 March 2025.

(5)   Subject to order (4), order Paul Whitmarsh to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – no extra-curial punishment

COSTS – prosecution costs

OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director did not put appropriate processes in place – director provided no appropriate resources – failure to verify PPE was in use

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Corporations Act 2001 (Cth), s 588G

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

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

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilhelm [2010] NSWSC 378

R v Wilkinson (No. 5) [2009] NSWSC 432

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

Silvano v R [2008] NSWCCA 118

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Paul Whitmarsh (Defendant)

Representation:

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

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

File Number(s):

2023/27880

Judgment

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

2. SafeWork NSW (SafeWork) has prosecuted AWB, alleging that AWB, 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) (the WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particular Mr Haywood, to a risk of death or serious injury contrary to s 32 of the WHS Act. Section 32 of the WHS Act creates what is known as a Category 2 offence.

3. AWB has pleaded guilty. AWB is now in liquidation.

4. On 2 May 2025, after a judge alone trial on a plea of not guilty, I found Mr Paul Whitmarsh guilty of an offence that as an officer of AWB who had a work health and safety duty pursuant to s 27 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to exercise due diligence to ensure AWB complied with its duty under s 19, he failed to comply with that duty and thereby exposed Mr Haywood to a risk of death or serious injury contrary to s 32 of the WHS Act: SafeWork NSW v Paul Whitmarsh (No. 3) [2025] NSWDC 150 (the primary judgment).

5. The maximum penalty for the offence is a fine of $353,430.

Background

6. At trial the parties presented an Agreed Statement of Facts which are set out in the principal judgment at [52]-[153]. After reviewing the evidence, I made additional findings of fact which are set out in the principal judgment at [47]-[51], [173]-[178] and [196]-[201]. Further findings of fact concerning how the incident happened are set out in the principal judgment at [250]-[277]. These largely came from the Agreed Statement of Facts but are supplemented by the evidence of witnesses. I will not set out those agreed facts and findings again in full, but I incorporate them by reference into this judgment.

Evidence for the Defendant

7. Mr Whitmarsh affirmed an affidavit on 20 June 2025 (DX 2) which is summarised below.

Background

8. Mr Whitmarsh was the sole director and secretary of AWB (now known as ACN 102 299 409 Pty Ltd). He had been the sole director since 2002.

9. In this role, Mr Whitmarsh had ultimate responsibility for AWB’s day-to-day operations.

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

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

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

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

The Incident

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

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

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

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

Safety Systems prior to the Incident

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

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

2. AWB Work Health and Safety Policy; and

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

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

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

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

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

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

Safety measures taken post-incident

21. SafeWork attended the worksite to investigate the incident.

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

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

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

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

3. hosting a toolbox talk on 12 March 2021 in relation to the two revised SWMSs.

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

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

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

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

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

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

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

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

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

27. I note that none of the measures set out in these new SWMSs were mandated or carried out on the day of the incident.

Impact on the AWB business

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

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

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

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

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

Impact on Mr Whitmarsh’s personal health

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

“Statement of contrition”

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

No prior convictions

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

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

Consideration

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

Objective Seriousness of the Offence

38. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

39. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

40. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

41. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

42. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

43. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

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

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

45. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

46. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

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

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

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

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

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

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

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

7. The maximum penalty for the offence is a fine of $353,430, which reflects the legislature’s view of the seriousness of the offence.

8. I repeat what I said in the primary judgment:

“335 Paragraph 33 of the Amended Summons pleads four ways in which it is alleged that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duties under the WHS Act.

336   The first of these is pleaded in par 33(a) as a failure by Mr Whitmarsh to exercise due diligence to ensure that AWB had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety for work carried out as part of the conduct of the AWB business or undertaking. Paragraph 33(a) then lists ten ways in which it is said that AWB should have taken appropriate steps. These included: undertaking an adequate risk assessment; obtaining the weight of Crazy Train; planning the recovery of Crazy Train using the crane, lifting slings and a lifting point consistent with relevant safe working limits; prohibiting workers from performing work which would exceed those safe working limits; failing to use a qualified dive team to assist in putting slings underneath Crazy Train; providing opportunities for the operators of the mobile cranes to obtain a suitable licence; assessing the skills and competence of mobile crane operators; providing training to workers so that they were aware of the risks associated with working with the mobile crane and performing crane lifts; requiring the mobile crane to be operated in accordance with the Load Charts and in accordance with Working Load Limits; never using the mast of a yacht as a lifting point; developing and promulgating a SWMS before work commenced on raising Crazy Train.

337 As previously acknowledged, the WHS Act does not require the director to do what the company should do. The s 27 duty cast upon the officer of a company is, to use the memorable phrase coined by Mr Hodgkinson SC, a duty “to ensure to ensure”. A director must ensure that the company has adequate processes and resources to ensure that the company complies with its duty under the WHS Act.

338 In the light of the findings of fact made above, it can be bluntly but accurately stated that Mr Whitmarsh did not put in place any appropriate processes and did not provide appropriate resources to enable AWB to discharge its s 19(1) duty. As previously recited, I have accepted the submission of counsel for SafeWork that Mr Whitmarsh was at the centre of the AWB safety system. He was the system. AWB failed utterly to take appropriate steps to eliminate or minimise risks to health and safety in relation to the raising of Crazy Train, and Mr Whitmarsh failed utterly to put in place and use appropriate processes and resources so that AWB could discharge its WHS duties. He failed to carry out any of his personal responsibilities, set out in plain English in the AWB safety documentation (summarised above), and thus he failed to exercise due diligence.

339   Even worse, as found above, Mr Whitmarsh told Mr Poulton to use the sling attached to the mast to lift Crazy Train from the water. Mr Whitmarsh knew that Mr Poulton did not have a licence to drive the crane and had not been formally trained in driving the mobile crane, which included the need to ascertain the mass to be lifted in accordance with the load charts. The instruction which Mr Poulton received from Mr Whitmarsh – to back off a lift if the crane started to tip – was a very cavalier and indeed dangerous approach to safe operation of the crane. If a mobile crane starts to tip, it is well beyond its safe working limit.

340   Paragraph 33(b) of the Amended Summons pleads that Mr Whitmarsh should have exercised due diligence by verifying by inspection or supervision that adequate PPE was available and in use during lifting operations. This included a hard hat and a life jacket or life vest since the operations were being conducted in proximity to water. The evidence was that such equipment was at the AWB yard, but its use was never mandated, and hard hats and life vests were hardly ever worn. The CCTV footage, insofar as it can show anything, shows workers walking around the AWB yard either bare headed or wearing cloth caps. This is in spite of crane operations involving lifting loads above the heads of workers, and the inherently dangerous way in which Crazy Train was being lifted with a sling attached to the mast.

341   Paragraph 33(c) of the Amended Summons pleads that Mr Whitmarsh should have exercised due diligence by instructing workers, in particular Mr Poulton, that work was not to commence on the lift of Crazy Train until a risk assessment had been completed and a detailed SWMS had been prepared. There was no risk assessment and there was no SWMS. Basically Mr Poulton, an unqualified operator of the crane, who had been taught bad habits by Mr Whitmarsh (who himself did not have a ticket for a 34-tonne crane), was in effect told to go ahead as best he could, with no attention given to the hazards involved or the means of ameliorating those hazards.

342   Paragraph 33(d) of the Amended Summons pleads that Mr Whitmarsh failed to exercise due diligence by verifying by supervision or visual inspection that appropriate resources, processes and measures had been provided, implemented and maintained by AWB and were being used by its workers. Mr Whitmarsh well knew that appropriate resources, processes and measures were not used, because he was the person at AWB in charge of safety, and he had done nothing. Mr Whitmarsh was on site, and even if he was in his office, that office afforded a view of the AWB yard. Mr Whitmarsh could and should have seen what was going on and could and should have recognised the danger posed to AWB employees by the flawed methods being used to attempt to raise Crazy Train.

343 Within a very short time after this fatal incident, AWB was able to produce appropriate SWMSs and conduct a Toolbox Talk (neither of which was attempted on the day of the incident) to take appropriate measures to guard against the risk of death or serious injury to AWB workers, during the salvage of a sunken vessel. When appropriate SWMSs were produced, they were generated and approved by Mr Whitmarsh. When a Toolbox Talk was held, it was held by Mr Whitmarsh. To repeat, Mr Whitmarsh did not have to do himself what the company should have done. However, he had to take proactive steps to ensure that AWB complied with the WHS Act. Mr Whitmarsh abdicated his responsibility in this regard completely, and did nothing.

344 In those circumstances, I find that the third element of the offence has been made out. I find that SafeWork has established beyond a reasonable doubt that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duty or obligation under the WHS Act.”

48. I find that the level of culpability of Mr Whitmarsh is in the high range.

Deterrence

49. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

50. The penalty must reflect the need for specific deterrence. Mr Whitmarsh is still conducting an identical business to that operated by AWB, under a very similar name. Its operations involve the use of heavy equipment and the continuing engagement of workers. It is a potentially dangerous industry, if proper safety practices are not followed.

51. Specific deterrence is an important factor in this case.

Aggravating Factors

52. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. Mr Haywood died as a result of the breaches by Mr Whitmarsh of his work health and safety duties.

Mitigating Factors

53. Mr Whitmarsh has no previous convictions: s 21A(3)(e) CSP Act.

54. Mr Whitmarsh gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. He cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

55. Apart from those two matters, there is very little else by way of mitigating factors.

56. Counsel for Mr Whitmarsh submitted that he was a person of good character: s 21A(3)(f) CSP Act. I do not accept that submission for the following reasons:

1. There was no character evidence from other persons.

2. Mr Whitmarsh has breached his duty as a director to prevent AWB trading while insolvent, for the last 5 years at least: s 588G Corporations Act 2001 (Cth).

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

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

5. The report of the liquidator states that over $3,000,000 worth of potential voidable transactions by AWB are still being investigated. These transactions were effected by Mr Whitmarsh, often in favour of himself or associated entities.

57. Counsel for Mr Whitmarsh submitted that Mr Whitmarsh is unlikely to re-offend: s 21A(3)(g) CSP Act. I do not accept this submission. There was no evidence of the safety systems and practices adopted at Mr Whitmarsh’s new business.

58. Counsel for Mr Whitmarsh submitted that has good prospects of rehabilitation: s 21A(3)(h) CSP Act. I do not accept this submission. There was no evidence of the safety systems and practices adopted at Mr Whitmarsh’s new business.

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

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

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

Extra-curial punishment

62. Counsel for Mr Whitmarsh submitted that the penalty should be moderated because Mr Whitmarsh had suffered extra-curial punishment. The submission was that “the incident has had a significant psychological effect on the offender”. This does not come within the legal notion of extra-curial punishment. A court can take into account extra-curial punishment, which is “loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence”: Silvano v R [2008] NSWCCA 118 [29]. Extra-curial punishment is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 at [21].

63. The cases give the following examples of extra-curial punishment: unintentional self-inflicted injuries received in the course of the offence; public humiliation; media coverage; and professional ramifications. None of these are relevant to the present proceedings. If Mr Whitmarsh has had a psychological reaction to the incident, as to which there is no corroborating medical evidence, that is not a punishment inflicted upon him by persons other than the sentencing court. I do take into account that he has been emotionally affected by the incident, but that is not an extra-curial punishment.

Capacity to Pay a Fine

64. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

65. 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.”

66. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

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

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

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

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

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

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

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

Tracey Haywood

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

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

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

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

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

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

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

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

Rebekah Haywood

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

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

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

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

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

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

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

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

Costs

90. Subject to two matters, there will be an order for the defendant to pay the prosecutor’s costs. Firstly, the defendant and the prosecutor both had interlocutory issues dealt with shortly before the hearing. The defendant succeeded on his application and the prosecutor succeeded on its application. Both applications took up approximately the same amount of time. Rather than order costs to follow each event, I will adopt the practical submission of counsel for SafeWork, that each party should pay its or his own costs of these applications.

90. Secondly, counsel for Mr Whitmarsh submitted that a 25% deduction should be made from the costs ordered against Mr Whitmarsh. The basis for the submission was that SafeWork had failed to prove particular 32(a)(ii) pleaded in the Summons. I decline to make any deduction. The issue upon which SafeWork failed took up little time. It emerged from a reading of part of the expert report of Mr McPherson. I am not even sure that the topic was the subject of any cross examination or submission for Mr Whitmarsh. Any separate costs on that issue are de minimis.

Penalty

92. My orders are:

1. Paul Whitmarsh was convicted on 3 July 2025.

2. Order Paul Whitmarsh to pay a fine of $300,000.

3. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

4. Order each party to pay its or his own costs of and incidental to the interlocutory hearings held on 13 March 2025 and 26 March 2025.

5. Subject to order (4), order Paul Whitmarsh to pay the prosecutor’s costs.

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Decision last updated: 23 July 2025