SafeWork NSW v Profect Construction Pty Ltd
[2025] NSWIC 19
•4 November 2025
|
New South Wales |
Case Name: | SafeWork NSW v Profect Construction Pty Ltd |
Medium Neutral Citation: | [2025] NSWIC 19 |
Hearing Date(s): | 14 October 2025 |
Date of Orders: | 4 November 2025 |
Decision Date: | 4 November 2025 |
Before: | Bellew AJ |
Decision: | (1) I convict Profect Construction Pty Ltd of the offence as charged. |
Catchwords: | CRIMINAL LAW — work health and safety — offences — category 2 – where crane on work site came into contact with overhead power lines causing cabin of the vehicle to be scorched – no person injured – obvious risk of injury – where a series of steps could have been easily and inexpensively implemented to address the risk – some steps taken to address the risk which were insufficient to properly do so – serious offending – strong subjective case – early plea of guilty - defendant a small family company – unchallenged evidence of parlous financial state establishing a reduced capacity to pay a fine – substantial moderation of fine justified balanced against the need for any penalty to reflect general deterrence |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) |
Cases Cited: | DH v R [2022] NSWCCA 200 |
Category: | Sentence |
Parties: | SafeWork NSW (Prosecutor) |
Representation: | Counsel: |
File Number(s): | 2025/00050086 |
Publication Restriction: | Nil |
JUDGMENT
INTRODUCTION
By an amended summons filed on 14 July 2025 Profect Construction Pty Ltd (the defendant) was charged with an offence contrary to ss 19(1) and 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) in the following terms:
“On 9 February 2023 at 156 Park Road Dundas in New South Wales [the defendant], being a person conducting a business or undertaking who had a health and safety duty under [the 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 its duty, and the failure to comply with that duty exposed Peter Psaradellis, a worker, to a risk of death or serious injury”.
The pleaded risk was particularised as follows:
“The risk was the risk to Peter Psaradellis, a worker, suffering serious injury or death as a result of exposure to electricity subsequent to contact between the vehicle loading crane and overhead power lines.”
The maximum penalty for the offence is a fine of 17,315 penalty units, which amounts to $1,860,843.
The Court received, without objection, a Tender Bundle containing a significant amount of documentary evidence which I have addressed below.
The Tender Bundle contained a statement of agreed facts in the following terms:
Authority to bring Proceedings
SafeWork NSW (SafeWork), being the regulator as defined by section 4 of the Work Health and Safety Act 2011 (the Act), is empowered under section 230(1)(a) of the Act to institute proceedings in this matter.
Profect Construction Pty Ltd
At all material times, Profect Construction Pty Ltd (ACN 077 552 446) (Profect) was a person conducting a business or undertaking at 156 Park Road, Dundas in New South Wales.
At all material times, Profect conducted a business involving residential construction.
At all material times, Profect was the principal contractor at a construction site located at 156 Park Road, Dundas (the site), where a new build of a two-storey dual occupancy home was under construction.
Kens Sand and Cement Pty Ltd
At all material times, Kens Sand and Cement Pty Ltd (ACN 632 455 540) (Kens), being a corporation, was a person conducting a business or undertaking within the meaning of section 5 of the Act.
At all material times, Kens’ business or undertaking involved the supply and delivery of sand and cement products.
At all material times, Kens was a contractor of Profect who supplied sand and cement products to Profect.
The incident
On 9 February 2023, Kens received an order from Profect to deliver 7 bulk bags of sand to the site.
The order was received by Kens and assigned to be delivered by Peter Psaradellis. It was loaded onto a 2007 Isuzu FVY tipper 1400 truck (the truck) with a 2007 model Hiab 122 B-3 Duo model vehicle loading crane fitted (the crane). The specifications of the crane included a lifting capacity of 110 KnM (i.e. 11 tonnes).
Mr Psaradellis was not the holder of a high-risk work class CV (Vehicle Loading Crane) licence, nor had Kens arranged this for Mr Psaradellis.
Mr Psaradellis arrived at the site shortly before 11.30am on 9 February 2023. Some bricklayers on site directed him to a gap in the wall on the first floor adjacent to Dora Crescent to unload the material.
When Mr Psaradellis arrived, there was no designated site supervisor present on behalf of Profect.
Dora Crescent was designated as the unloading zone for trucks at the site as at 9 February 2023.
Mr Psaradellis parked the truck with the front offside wheel on the nature strip of Dora Crescent in order to unload. He was not subject to any supervision in selecting the appropriate location for unloading.
There were low voltage power lines (400/200V AC) along Dora Cres adjacent to the construction site. The powerlines were approximately 4.33m above the ground where the truck was parked. They were not de-energised at the time of unloading.
Prior to parking the truck in that area and beginning the process of unloading, Mr Psaradellis had seen the powerlines above but nevertheless decided to continue to unload in that area.
There were no warning signs in place to indicate the presence of powerlines.
Mr Psaradellis unloaded one bag onto the second storey of the building under construction. While he was attempting to unload a second bag, the knuckles of the crane contacted the overhead powerlines, bringing a live powerline onto the truck, which was damaged.
SafeWork investigators attended the site. They observed scorch marks above the driver’s side door and on the cab. There was also a scorch mark, and a piece of cable welded to the mirror support on the driver’s side door. There were further scorch marks on the lower mirror mount on the driver’s side door. The plastic mount cover was melted. The airbag had been deployed, and the driver’s side window was shattered.
Nobody was injured.
Guidance Material
The Safe Work Australia Guide for operating cranes and mobile plant near overhead electric lines provides that a ‘no go zone’ should be set up around overhead electric lines. A separate ‘zone B’ should be set up which is adjacent to the no-go zone, and where a crane may only be operated by a person who is authorised by the Electricity Supply Authority. The guide also provides for warning signs around overhead lines.
The Endeavour Energy Factsheet on electrical safety for building and construction workers, and Australian Standard 2550.1-2011 provide guidance regarding safe use of cranes, hoists and winches in the vicinity of powerlines. Both documents indicate that a party responsible for a given site should establish a safe loading zone away from power lines and should erect warning signs in relation to the low power lines.
Systems of Work prior to the Incident
Profect had the following procedures in place to control risk:
(1)Plant Management Procedure, which specified that risk assessments must be done and that only licensed people are allowed to use the allocated plant belonging to the defendant; and
(2)Emergency Procedures for Electrical Incidents involving crane operations, which provided for a sequence of action in the event of an emergency. The site manager should be notified immediately.
In answer to questions from investigators, Mr Uluc, the Director of Kens, stated that prior to the incident:
(1)Kens did not have any formal safety training or procedures in place;
(2)There was no official induction for workers;
(3)Workers were not trained in relation to the dangers of working in proximity to overhead powerlines, or in relation to no-go zones; and
(4)There was no process for unloading in proximity to powerlines.
Consistent with this, prior to the incident, Mr Psaradellis had not received any training from Kens in relation to crane operations in the vicinity of powerlines.
Systems of Work Post Incident
After the incident, Mr Psaradellis completed a one-week course to obtain a high-risk licence in relation to the use of a crane.
Following the incident and the issue of an Improvement Notice by SafeWork, the area along Park Road was designated as the unloading zone for the site, and warning signs were installed on Dora Crescent.
Profect took a number of post-incident steps in relation to its systems and personnel in response to improvement notices. These include the designation of a new loading zone, warning signage in relation to the powerlines, maintaining a high-risk work licence register, and the development of a safe work method statement.
THE EVIDENCE IN THE DEFENDANT’S CASE
Two affidavits sworn by the sole director of the defendant, Jok On Lee, dated 16 September 2025 (the first affidavit) and 23 September 2025 (the second affidavit), were read without objection.
The first affidavit addressed, in general terms, the financial state of the defendant which may be summarised in the following table:
| FINANCIAL YEAR | PROFIT/LOSS | NET ASSETS | TOTAL LIABILITIES | CASH ON HAND | TOTAL DEBT LEVEL |
| 2022/2023 | $106,649 (L) | $252,306 (L) | $254,432 | $315 | $282,307 |
| 2023/2024 | $32,829 (L) | $283,135 (L) | $287,602 | $798 | $315,136 |
| 2024/2025 | $143,370 (L) | $393,006 (L) | $400,672(L) | $804 | $458,507 |
The second affidavit addresses the background of the defendant and the circumstances of the offending, which may be summarised as follows.
The defendant has operated for more than 28 years carrying out residential construction work across Sydney. It has two direct employees, namely Mr Lee and his wife - although Mr Lee’s children assist in a voluntary capacity from time to time. The defendant engages subcontractors on a regular basis, up to 40 at any given time.[1]
[1] Second Affidavit at [3] –[5].
Prior to the incident giving rise to the proceedings, Mr Lee had attended conferences, seminars and training courses for the purposes of keeping the defendant’s approach to health and safety issues up to date. He has, over the years, also completed courses in occupational health and safety.[2] Mr Lee’s unchallenged evidence is that the defendant prioritised safety issues, and that this was reflected in Mr Lee:[3]
(1)personally engaging with workers on site as to the work to be carried out, the presence of hazardous or dangerous materials, the location of the evacuation area, and the location of medical equipment;
(2)monitoring workers to ensure that they were carrying out their duties safely;
(3)ensuring that workers who were identified as being less experienced would undergo appropriate training;
(4)maintaining a work diary for each job recording the daily schedule of visiting contractors;
(5)implementing traffic management plans addressing the management of the flow of people and vehicles in and around the worksite;
(6)implementing plant management procedures which, amongst other things, made provision for the conduct of risk assessments; and
(7)putting in place emergency procedures and a WHS management plan to be followed in the event of incidents arising from the operation of cranes.
[2] Second Affidavit at [8].
[3] Second Affidavit at [9] – [17].
In relation to the site where the offending occurred, Mr Lee explained[4] that he had observed the presence of power lines close to one side of the site. He said that it was his practice to instruct delivery trucks to park parallel and close to the building, away from the power lines. He also said that he had placed scaffolding around the sides of the site where the power lines were present, in an attempt to limit the risk of falls, and stop trucks from unloading. That said, he expressly accepted that in light of what had eventuated, those steps were “not the most adequate system”.
[4] Second Affidavit at [18].
Mr Lee explained[5] that following the incident, immediate remedial steps were taken which included:
(1)installing signs warning of the presence of, and the danger posed by, overhead power lines;
(2)erecting barriers on the scaffolding in an effort to prevent persons from touching the power lines;
(3)allocating a designated loading zone area and directing workers to ensure that any unloading occurred within that area; and
(4)consulting with officers from SafeWork NSW and Endeavour Energy about safety procedures in relation to power lines.
[5] Second Affidavit at [19].
Mr Lee stated that the defendant had co-operated with SafeWork NSW during its investigation, and that this was the first time that it had been prosecuted for this kind of offence.[6] He explained that he is now 70 years of age and had migrated from Hong Kong in 1990. He outlined his contributions to the community in various respects. Those contributions are extensive and impressive.[7]
[6] Second Affidavit at [22] – [23].
[7] Second Affidavit at [24] – [32].
Mr Lee described himself[8] as being “filled with remorse” at what had occurred, and at the predicament in which Mr Psaradellis had been placed. He said that on any occasion on which Mr Psaradellis had come to any of his building sites to make a delivery, he had always enquired as to his well-being.[9]
SUBMISSIONS OF THE PARTIES
[8] Second Affidavit at [33]
[9] Second Affidavit at [35].
Submissions of the Prosecutor
In written submissions, counsel for the Prosecutor submitted that the defendant’s breach of duty centred upon its failure to take reasonable and practical measures to reduce or eliminate the risk, including:[10]
(1)developing, documenting and adequately communicating to workers a safe system for the unloading of trucks using a crane, which included:
(a)designating a safe unloading zone;
(b)communicating the designation of that zone to workers and visitors in the site; and
(c)installing appropriate warning signage within the vicinity of power lines;
(2)ensuring that the unloading of materials and use of cranes at the site was subject to supervision sufficient to ensure that the unloading occurred in a designated zone.[11]
[10] Safework NSW, ‘Prosecutor’s Submissions on Sentence’, Submission in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 30 September 2025, [18].
[11] Ibid, [18].
Counsel accepted that in determining the appropriate penalty, the Court was to have regard to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act),[12] and was required to impose a penalty which would give effect to the objects of the WHS Act, in particular, to the requirement of ensuring the safety, health and welfare of workers and others on workplace premises.[13]
[12] Ibid, [20].
[13] Ibid, [19].
Counsel submitted that the offence should be regarded as a serious one because:
(1)the deficiencies in relation to the system of work were obvious, and the measures that ought to have been introduced to address them were straightforward;[14]
(2)the risk of contact between cranes and live powerlines was obvious;[15] and
(3)the responsible party of the construction site, the defendant in this case, had a responsibility to establish a safe loading zone away from power lines and erect warning signs in relation to them.[16]
[14] Ibid, [23].
[15] Ibid, [24].
[16] Ibid, [25].
Counsel submitted[17] that the identified measures which the defendant ought to have taken[18] were capable of easy and inexpensive implementation and that, had they been taken, the risk would have been greatly reduced, if not eliminated. Such risk, he submitted, was an obvious one, and whilst he obviously accepted that no injury actually ensued, he submitted that there was nevertheless a very real prospect of Mr Psaradellis contacting live power lines which, had it occurred, would have resulted in catastrophic consequences.[19]
[17] Ibid, [26] – [28].
[18] Ibid, [14].
[19] Ibid, [31].
In terms of the defendant’s subjective case, counsel raised little issue. He conceded, in particular, that:
(1)a plea of guilty had been entered which had resulted in a significant utilitarian benefit, such that the defendant should have the benefit of a discount of 25%:[20]
(2)the plea could also be regarded as evidence of the defendant’s remorse;[21] and
(3)the defendant has no prior convictions.[22]
[20] Ibid, [33] – [34]; Sentencing Act s 21A(3)(k).
[21] Safework NSW, ‘Prosecutor’s Submissions on Sentence’, Submission in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 30 September 2025, [35].
[22] Ibid, [36].
Nevertheless, counsel submitted that it was necessary for any penalty to reflect considerations of both specific and general deterrence.[23] He submitted, in particular, that the latter was a significant factor in matters of this kind, and that it was important for the Court to impose a penalty that would increase attention to the need not to expose workers to risks to their health and safety.[24]
In oral submissions, counsel clarified that the reference in the agreed facts[25] to the fact that Mr Psaradellis was not the holder of a particular type of licence was not to be construed as a suggestion that what had occurred was in any way Mr Psaradellis’ fault[26] or that any fault lay with his employer, Kens Sand and Cement Pty Ltd.[27] Without derogating from any other matter upon which he relied, counsel identified the key aspects relevant to an assessment of the objective seriousness of the offending as being the absence of:[28]
(1)supervision;
(2)a designated “no go” zone;
(3)a safe loading zone; and
(4)warning signs.
[23] Ibid, [40].
[24] Ibid, [41].
[25] Ibid, [10].
[26] Tcpt, 15 October 2025, p 6(49).
[27] Safework NSW, ‘Statement of Agreed Facts’, Filed in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 17 September 2025, [24]-[25]; Tcpt, 15 October 2025, p 7(33).
[28] Tcpt, 15 October 2025, p 8(25)-(45).
Whilst counsel accepted that the presence of the powerlines was obvious by reference to photographs contained in the Tender Bundle, he submitted that this formed an important part of any assessment of objective seriousness. He submitted that the fact that the powerlines created an obvious risk made it all the more necessary for the defendant to address the issue appropriately.[29]
[29] Tcpt, 15 October 2025, p 9(5)-(35).
Consistent with the written submissions, counsel essentially confirmed the various concessions which had been made regarding the principal aspects of the defendant’s subjective case.[30] In light of those matters, counsel expressly accepted that it would be open to me to find that the defendant is of good corporate character, is not likely to reoffend, and has good prospects of rehabilitation.[31]
[30] Tcpt, 15 October 2025, p 9(35)-10(5).
[31] Tcpt, 15 October 2025, p 10(1)-(20),p 12(18).
In summary, counsel submitted that the principal matters which would inform the determination of the appropriate penalty were:[32]
(1)the fact that the risk was obvious;
(2)that numerous measures to address the risk could have been easily and inexpensively implemented; and
(3)that those measures included implementing a simple system of supervision of delivery drivers to direct them to an available and appropriate location at which to unload, away from overhead power lines, in circumstances where there were persons on site who could have fulfilled that supervisory role.
[32] Tcpt, 15 October 2025, p 12(23).
Finally, counsel addressed the defendant’s affidavit evidence concerning its capacity to pay any penalty.[33] Whilst counsel did not challenge the accuracy of the financial evidence summarised in the table above, he emphasised that the onus of establishing any reduced capacity rested on the defendant. Whilst counsel certainly did not concede that such onus had been discharged, he accepted that he was in no position to challenge the evidence which had been advanced. Ultimately counsel appeared to accept that the evidence did, in fact, establish that that the defendant’s capacity to pay a fine was reduced, but emphasised that it remained necessary to weigh that factor against the clear need for general deterrence.[34]
[33] Tcpt, 15 October 2025, p 15(33)-16.
[34] Tcpt, 15 October 2025, p 29(10)-28(15).
Submissions of the defendant
In written submissions, counsel for the defendant expressly accepted that the identified risk was foreseeable.[35] However, he submitted that this was not a case in which the defendant had completely abandoned its responsibilities. In support of that submission, he cited the matters set out in the second affidavit as evidence of positive steps which had been taken by Mr Lee towards the minimisation of the risk.[36] That said, counsel accepted that the defendant acknowledged, by its plea, that such measures as were in place were insufficient, and accepted that the absence of any supervision was due to the absence of Mr Lee on site.[37] It was submitted that in all of these circumstances, the present case could not be categorised as one in which the defendant had, in effect, taken no steps at all towards addressing risk.[38] That said, counsel expressly accepted that the gravity of the risk was objectively serious,[39] and that the measures which had been identified as available to the defendant at the time were reasonably practicable.[40]
[35] Jok On Lee, ‘Defendant’s Outline of Submissions’, Submission in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 7 October 2025, [5].
[36] Ibid, [7].
[37] Ibid, [8].
[38] Ibid, [14].
[39] Ibid, [9].
[40] Ibid, [10].
In terms of the defendant’s subjective case, counsel emphasised those matters conceded by counsel for the Prosecutor.[41] He also relied upon the assistance provided by the defendant in the investigation[42] and pointed out the remedial steps taken by Mr Lee following the incident.[43] He accepted that general deterrence was an important factor on sentence[44] but submitted that any need for such sentence to reflect personal deterrence was low.[45]
[41] Ibid, [17] – [20]; [23] – [25].
[42] Ibid, [15] – [16].
[43] Ibid, [21] – [22].
[44] Ibid, [26].
[45] Ibid, [27].
Ultimately, and leaving aside its objective case which is largely undisputed, counsel summarised the defendant’s position in the following propositions:
(1)the defendant had, by its plea of guilty, accepted that it ought to have undertaken the measures which had been identified to minimise the risk;[46]
(2)notwithstanding that failure, this was not a defendant which was indifferent, or wilfully blind, to its duties and obligations, nor was it a defendant who had completely ignored the need to address risk;[47]
(3)I should conclude that the defendant’s degree of criminality fell in the “high end of the low range”.[48]
[46] Ibid, [30].
[47] Ibid, [31].
[48] Ibid, [33].
Counsel expanded on these matters in oral submissions. He emphasised that the defendant was, to use the vernacular, a “small business”.[49] Counsel accepted that there was an absence of supervision at the relevant time, and that this had been brought about by Mr Lee’s absence from the site, but emphasised that the defendant was not an organisation which paid no attention at all to safety issues,[50] as evidenced by the fact that there were some systems in place beforehand.[51] That said, counsel accepted that there were steps which could easily have been taken, but had not been.[52] Counsel for the defendant also pointed to the steps which had been taken by the defendant after the incident.[53]
[49] Tcpt, 15 October 2025, p 17(27)-18(24).
[50] Tcpt, 15 October 2025, p 18(45)-19(6).
[51] Tcpt, 15 October 2025, p 19(23), 19(44)-20(2).
[52] Tcpt, 15 October 2025, p 20(10)-(14).
[53] Tcpt, 15 October 2025, p 21(27)-22(25).
In terms of the defendant’s financial position, counsel accepted that the defendant, despite its ongoing losses, continued to operate but submitted that the evidence nevertheless established a reduced capacity, as opposed to an incapacity, to pay a fine.[54] Counsel took the Court at some length to the evidence in the first affidavit[55] which, he submitted discharged the defendant’s onus of establishing that it has a reduced capacity to pay a fine, and that this was a matter was properly taken into account on sentence.[56]
[54] Tcpt, 15 October 2025, p 22(34)-22(42).
[55] Tcpt, 15 October 2025, p 23(1)-25(1).
[56] Tcpt, 15 October 2025, p 26(43)-26(49).
CONSIDERATION
It is appropriate to commence the determination of an appropriate penalty by addressing the issue of the objective seriousness of the offence. The assessment of objective seriousness is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of an appropriate sentence.[57] A sentencing court is obliged to make plain the conclusion which has been reached following such assessment and the reasons for such conclusion.[58] I must carry out the assessment wholly by reference to the nature of the offending, and without reference to matters personal to the defendant.[59]
[57] See DH v R [2022] NSWCCA 200, [60] (Yehia J).
[58] R v Dawson [2022] NSWSC 1632, [10] (Harrison J) (as his Honour then was).
[59] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27].
In the present case, the submissions of counsel for the defendant invited me to, in effect, place the offending at a particular point within a notional scale of objective seriousness. Whilst that is not necessarily an uncommon approach, a failure to adopt it is certainly not an error. On the contrary, and without intending in any way to be critical of counsel, it has been recognised that such an approach may be is unhelpful, to the point where it may be apt to confuse.[60] What the Court must do in carrying out the necessary assessment is identify the facts, matters and circumstances that are relevant to the seriousness of the offending, and which therefore bear upon the appropriate penalty which is to be imposed.[61]
[60] DH, [33] (Harrison J).
[61] See Muldrock v The Queen (2011) 244 CLR 120 at [29]; DH at [60].
In the present case, the fundamental risk posed by the overhead powerlines was obvious and was one that demanded an appropriate response. The defendant’s response was wholly inadequate. There were, as counsel for the Prosecutor pointed out, a series of measures that were obvious and easy to implement, and which could, and should have, been taken. They included, principally:
(1)the development and communication of a safe system of unloading trucks which included, at the very least:
(a)the creation of a safe unloading zone away from power lines;
(b)the communication of that zone to workers and visitors; and
(c)the installation of appropriate warning signs.
Each of those measures could have been easily and inexpensively implemented. The failure to implement them was compounded by the absence of Mr Lee from the site at the relevant time, resulting in what was, in effect, an almost total lack of supervision. In these circumstances, the observations of Basten JA in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd[62]:
“[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 on assessment of all those factors.”
[62] [2017] NSWCCA 96, [34].
His Honour continued:[63]
“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 little, if any, costs.”
[63] Ibid, [42].
In the present case the potential consequences of the risk were high and there were clear remedial steps which could have been taken that were neither complex nor burdensome. They could also have been implemented at minimal cost.
Although no person was injured as a consequence of what transpired in the present case, that outcome was, to coin a phrase, more a consequence of good luck than good management. In that regard, photographs contained within the tender bundle are particularly telling. They demonstrate the damage caused to the truck by the ignition of the power line, which included the driver side window shattering, and various areas of the driver side door being scorched.[64] The photographs provide a stark illustration of the risk which was posed.
[64] Safework NSW, ‘Sentence Tender Bundle’, Filed in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 17 September 2025, Photographs 26 and 27.
In all of these circumstances, and even in the absence of any statutory or other aggravating factors being identified,[65] I am driven to the conclusion that the offending was serious and that the defendant’s culpability is significant.
[65] Sentencing Act s 21A(2).
Counsel for the defendant accepted, as I understood it, that all of the factors considered above highlighted the need for any penalty to have regard to general deterrence. However, in light of the particular subjective factors set out below, I take the view that personal deterrence, whilst not completely irrelevant, has a very limited role to play on sentence.[66]
[66] Jok On Lee, ‘Defendant’s Outline of Submissions’, Submission in Safework NSW v Profect Construction Pty Ltd, 2025/00050086, 7 October 2025, [38].
There is little in dispute in terms of the defendant’s subjective case.
To begin with, it is accepted that the defendant pleaded guilty at a sufficiently early stage to be entitled to a discount of 25%.[67] There is also no issue that the defendant is of good corporate character,[68] that it is unlikely to reoffend,[69] and that it has good prospects of rehabilitation.[70] Further, and quite apart from the plea of guilty, I accept that Mr Lee’s sworn evidence of remorse, which he has expressed on behalf of the defendant and which has not been challenged, is genuine, and that it reflects an unequivocal acceptance of responsibility on the part of the defendant for what occurred.[71] That remorse is also reflected in the co-operation provided by the defendant in the course of the investigation, and the steps which were taken to address the risk after the relevant events occurred.
[67] Sentencing Act s 21A(3)(k).
[68] Sentencing Act s. 21A(3)(f).
[69] Sentencing Act s 21A(3)(g).
[70] Sentencing Act s 21A(3)(h).
[71] Sentencing Ac s 21A(3)(i) and see Zwam v R [2017] NSWCCA 127.
As previously noted, I accept that the defendant is not a company which failed to address safety issues at all, in the sense of completely abrogating its responsibilities. Some measures were put in place, and some steps were taken, in an effort to ensure the safety of those on the site. It follows that this is not a case in which there was a complete abandonment of responsibility, That said, the defendant’s efforts, whilst laudable in one sense, fell substantially short of what is required.
I have taken all of the factors into account. I accept that, when taken together, they constitute a strong subjective case. However, I am also mindful of the fact that it is necessary to ensure that the weight given to a subjective case, no matter how strong that case might be, cannot be permitted to result in the imposition of a sentence which fails to reflect the objective gravity of the offending.
I am satisfied that the defendant has discharged the onus of establishing that its financial state is such that it has a reduced capacity to pay a fine. Counsel for the Prosecutor ultimately did not argue against such a finding. Consistent with the position taken by the parties, I have approached that issue in accordance with the observations of his Honour Judge Russell SC in Safework NSW v S G Interior Linings Pty Limited:[72]
“[78] 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 R [2024] 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.
[79] In Unity Pty Ltd 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.’
[80] I am satisfied that SG is a small family business, which at the moment has no work because of the liquidation of its sole customer. I am also satisfied from the material tendered that SG has no available assets or income to meet a large fine. Further, I am satisfied from the bank statements of Mr and Mrs Guan, that they are presently unable to provide funds to the company. In those circumstances I will moderate the fine significantly, from that which might otherwise have been ordered. However, the size of the fine still reflects the need for general deterrence and reflects the seriousness of the offence.”
[72] [2025] NSWDC 249, [78] – [82].
As was the position in S G Interior Linings, the defendant in this case may properly be described as a small family business. It has operated at a loss for some time and there is no evidence that it has an asset base, or other income, which can be directed towards the payment of a fine. I am satisfied that any financial penalty which is imposed will create a significant financial burden for the defendant. It follows that the evidence supports a substantial moderation of the fine which might otherwise have been imposed, whilst, at the same time, bearing firmly in mind the need for any penalty to reflect considerations of general deterrence.
Finally, I should note that the incident which is the subject of this prosecution occurred on 9 February 2023. The proceedings were not commenced until 7 February 2025, almost 2 years later. Notwithstanding the fact that the issue had not been relied upon as part of the defendant’s subjective case, I raised with counsel in the course of the hearing whether the circumstances surrounding the commencement of the proceedings may be relevant on sentence, bearing in mind numerous determinations of intermediate appellate Courts, including the Court of Criminal Appeal in this State, which establish that delay which is not attributable to an offender may be a relevant factor on sentence at a number of different levels.[73]
[73] See for example Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33 at [27] – [45] and the authorities cited therein.
At my invitation, counsel for each party provided further written submissions in relation to the issue.
In short, counsel for the Prosecutor submitted that, leaving aside the fact that there was no evidence of any adverse impact of any suggested delay on the defendant in the present case, the statutory regime which governs the investigation and prosecution of matters of this kind addressed the issue. It was further submitted that, as a general proposition, delay of this kind had limited application in cases where the defendant was a corporation rather than a natural person. Counsel for the defendant generally accepted that position.
In these circumstances I will take the issue no further, other than to say that in my view, it would not be correct to conclude that there will never be a case in which delay may not be relevant to sentence.
Finally, in reaching my conclusion as to penalty I have had regard to previous decisions in matters of this general nature, including Safework NSW v Arkwood Gloucester Pty Limited (No. 2)[74] and Safework NSW v Onsite Rental Group Operations Pty Limited.[75] Both of those cases involved workers coming into contact with high voltage power lines, although the circumstances of the offending were markedly different, and the consequences significantly more serious, in each case. The same could be said for S G Interiors.
[74] [2022] NSWDC 201.
[75] [2021] NSWDC 338.
The decisions in each have provided some guidance. At the same time, sentencing is not a comparative exercise. it is well recognised that no two cases are factually the same. What is to be achieved in the assessment of penalty is the consistent application of principle, not numerical (or in cases of this kind, monetary) equivalence.[76]
[76] See Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] – [49].
ORDERS
I convict Profect Construction Pty Ltd of the offence as charged.
The appropriate penalty for the offence is $60,000.00, which will be reduced by 25% to reflect the plea of guilty.
Accordingly, the fine imposed upon Profect Constructions Pty Ltd is $45,000.00.
I make the following orders:
(1)I impose a fine of $45,000.00.
(2)Profect Construction Pty Ltd is to pay the Prosecutor’s costs of the proceedings as agreed or assessed.
(3)Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the Prosecutor.
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