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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWDC 274
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case of SafeWork NSW v Paul Whitmarsh (No. 4) involved the prosecution of Paul Whitmarsh, a director of a company involved in sunken yacht salvage, following an incident where a worker was struck on the head by a mast during a crane lift operation. Whitmarsh was charged under work health and safety laws for failing to exercise due diligence, not putting appropriate processes in place, not providing appropriate resources, and not verifying that personal protective equipment (PPE) was in use. Whitmarsh pleaded guilty to the charges. The court was required to determine the appropriate penalty, taking into account the objective seriousness of the offence, any mitigating or aggravating factors, the plea of guilty, the need for general and specific deterrence, and Whitmarsh’s capacity to pay an appropriate penalty. The court also needed to decide on the payment of prosecution costs.

The court found the incident to be of high objective seriousness due to the risk of death or serious injury. The mitigating factors included Whitmarsh’s plea of guilty and his lack of previous convictions. The court considered several aggravating factors, such as Whitmarsh’s failure to exercise due diligence, the inadequate processes and resources provided, and the failure to verify PPE usage. The court determined that a substantial fine was necessary to ensure general deterrence and specific deterrence for Whitmarsh. Whitmarsh was found to have the capacity to pay the fine, leading to an order for a $300,000 fine, with 50% to be paid to the prosecutor. The court also ordered Whitmarsh to pay the prosecutor’s costs, subject to each party bearing their own costs for interlocutory hearings.

The final orders of the court included Whitmarsh’s conviction on 3 July 2025, a fine of $300,000, and a direction that 50% of the fine be paid to the prosecutor. Each party was ordered to bear their own costs for specified interlocutory hearings, with Whitmarsh responsible for the prosecutor’s costs otherwise. These orders reflect the court’s consideration of the seriousness of the offence, the need for deterrence, and the financial implications for the parties involved.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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