SafeWork NSW v Silver Raven Pty Ltd

[2025] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Silver Raven Pty Ltd [2025] NSWDC 8

Hearing dates:

19 December 2024

Date of orders:

06 February 2025

Decision date:

06 February 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Silver Raven Pty Ltd is convicted.

2   I impose a fine of $180,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

WORK HEALTH AND SAFETY – worker not qualified to complete task

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Silver Raven Pty Ltd [2019] NSWDC 425

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Silver Raven Pty Ltd (Offender)

Representation:

Counsel:
M Moir (Prosecutor)
N Read (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Jordan Djundja Lawyers (Offender)

File Number(s):

2023/278485

Publication restriction:

None

JUDGMENT

1. Silver Raven Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Diamond Notaras to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of 17,315 penalty units ($1,782,579).

Facts

3. The parties presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentenced imposed.

Background

4. The offender undertakes a range of high-pressure water jetting services including industrial tank, pipe and tube bundle cleaning.

5. The offender had been engaged by John Holland Pty Ltd (John Holland) to undertake high-pressure water jetting works as part of the Batemans Bay Bridge replacement project in Batemans Bay, New South Wales (the site).

6. The project included removal of the existing bridge, construction of a new bridge and foreshore upgrade works. The offender was contracted to perform the hydro demolition work for the project.

7. Mr Notaras had been engaged by the offender for approximately five years with approximately two years working in high pressure water jetting. He completed training in “Use High Pressure Water Jetting Equipment” on 17 March 2020 and in-house training for hydro equipment on 21 September 2020. At the time of the incident, Mr Notaras was employed as a Hydro Blaster/Civil Assistant by Silver Raven Workforce Pty Ltd, a wholly owned subsidiary of the offender.

8. Paul Anderson was engaged by the offender as a leading hand/operator. Mr Anderson had completed training in Operating High Pressure Water Jetting Equipment and had 20 years’ experience in high pressure water jetting work. He was in charge of the high-pressure jet work at the site.

The equipment

9. The plant and equipment involved in the incident was a high pressure water jetting system which consisted of the following items:

1. one jetting gun (Jetstream);

2. two rigid lances;

3. ABB connector with no pressure rating marked on the connector;

4. one Stoneage Barracuda nozzle;

5. one 25 metre long hose assembly;

6. one high pressure connector – Duebre 2438-207M 1.4571 (rated for 4000 bar);

7. one safety shroud;

8. one high pressure water jetting pump unit – Hammelmann HDP204.

10. The pump unit being used at the time of the incident showed the following parameters:

1. max pressure: 2500 Bar;

2. max speed: 2150 RPM;

3. max fluid quantity: 24 l/min.

11. Attached to the pump was a 25 metre hose with two lances measuring approximately 1300mm for the shorter lance and the nozzle with an approximate length of 4000mm for the entire lance and Jetstream gun nozzle assembly.

12. The lances were joined in the middle using a joiner. A rotary head was located at the end of the lance. The jetting gun did not have a pressure rating located on it.

13. The high pressure water jetting system was classified as a Class B system in accordance with the Australian Standard AS 4233. 1:2013 “High pressure water systems Part 1: Safe operation and maintenance” as it could produce a maximum energy output exceeding 5,600 bar litres per minute.

14. A Kevlar Sleeve or safety shroud is a cover that is placed over the hose and it is designed to protect the operator from a jet of high pressure water in the event of a failure near or close to the gun.

15. A whip sock is a device which is intended to restrain any uncontrolled movement of the hose in the event of a hose separator or connector failure.

Works at site

16. The offender’s work at the site commenced approximately two and a half weeks prior to the incident on 1 September 2021. By this stage, the new bridge was operational and overall, the works were focused on the removal of the existing bridge and piers.

17. Mr Notaras and Mr Anderson were tasked with high pressure blasting through old hardwood timbers, previously treated with cyanide, internally located in the existing bridge piers at the site. This process was required to remove any contaminants that were within the piers prior to their removal. The work involved placing the nozzle into a hole in the concrete pier and jet blasting the timber structures inside it. The water used to demolish the timber was pumped out to remove the contaminants and to prevent them polluting the river.

18. The work involved high pressure blasting three metres down into the timbers and so an extension was needed for the nozzle. The water was to be pumped, removing the dirty water.

The incident

19. On 1 September 2021, Mr Notaras and Mr Anderson were undertaking high pressure water jetting works on pier 3 of the bridge.

20. Access to the work location on the pier was via a barge, provided and operated by John Holland. The barge was anchored to the bridge footing located west of the bridge in the river. On the barge, Mr Notaras and Mr Anderson set up the water pressure gun and pump. They were wearing a double face protection helmet, glasses, a mask, steel capped boots, general non-gauntlet gloves and a life vest. The life vest was a requirement of John Holland for working in close proximity to the river.

21. Mr Notaras walked onto the pier from the barge. From the pier he was operating the gun/lance to high pressure wash timber at the base of a 3.6m deep, 300mm diameter core hole within the concrete caisson of the bridge. Mr Notaras was kneeling whilst operating the gun and placing his body weight on the gun.

22. Mr Anderson was operating the pump from the barge. Adam Johnstone, a leading hand from John Holland was also present observing the works.

23. Due to the depth of the hole and the steam coming out, Mr Notaras could not see the bottom of the hole.

24. At approximately 4:22pm, the metal connector between the gun assembly and the hose failed. The hose blew away from the gun. The stainless steel nuts stayed on the hose and flicked around for a short period of time until Mr Anderson was able to hit the emergency stop button. The metal joiner from the hose to the lance was damaged in the process and sheared off.

25. Mr Notaras dropped the gun and the hose struck him, resulting in serious injuries to his right arm. Mr Notaras’ arm was wrapped up by Mr Johnstone and emergency services were called.

26. Following the incident SafeWork NSW seized the plant and equipment involved in the incident and conducted an inspection which identified:

1. that the safety shroud was worn, and there were no cam buckles to attach the strap of the safety shroud to;

2. the male plug in the connector was damaged during the high-pressure jetting operation and broke off through mechanical force; and

3. the high-pressure connector failed at the maximum operating pressure of 2500 bar, which was below the 4000 bar pressure rating of the connector.

27. Inspector Li opined that the black strap on its own could not secure the safety shroud in the event of a hose failure. The whip socks could not be restrained to any opposed shackle points.

Injuries

28. As a result of the incident, Mr Notaras suffered significant degloving injuries to his right forearm, including damage to the extensor muscles, proximal injury to his wrist and a 300-degree circumferential injury covering the extensor and flexor surface.

29. Mr Notaras underwent surgery and as of 13 April 2023, was on light duties, working three days a week for the offender. Mr Notaras ceased working with the offender on 7 August 2023. In June 2024, Mr Notaras reported to SafeWork NSW that he continued to experience swelling and circulation issues and there is a possibility he may require shoulder surgery.

30. Mr Notaras has been certified as capable of working up to 40 hours per week with a lifting restriction of 10kg. As at June 2024 he was working 20 to 26 hours per week as a driver. He reported that he requires breaks between shifts for his arm to rest and recover.

Systems of work prior to the incident

31. The offender had a documented health and safety management system which included a master Safe & Environmental Work Method Statement (SEWMS). In addition, the offender had documented Plant and Equipment Risk Assessments, inspection checklists, toolbox talks and pre-start risk assessments.

32. On the day of the incident, Mr Notaras was not wearing Kevlar blast gloves or gaiters or any other Kevlar personal protective equipment (PPE) such as a jacket and pants. PPE was stored in cabinets in the work trucks, however, workers were not required to wear the Kevlar PPE on the day of the incident.

33. The offender had a site specific Safe Work Method Statement (SWMS) dated 13 August 2021 that made reference to AS4233. The SWMS:

1. addressed the risks of pump failure during high-pressure jetting works and identified all components shall be inspected, serviced and generally maintained in accordance with the manufacturer’s specifications;

2. identified the risk of incorrect PPE for flex lancing works resulting in injury;

3. in relation to “working in or around water” noted “barricade areas unsafe to access” and “risk assess if workers are safe to carry out task”;

4. identified as a potential hazard “incorrect hose assemblage and failure to perform visual inspections prior to use, resulting in high-pressure hose or equipment failure causing serious injury or death”. The SWMS also listed control measures for this risk including to conduct pre-start visual assessment of equipment for damage, fit hose stockings and hose restraint to all viable hose connections and check all hose joiners are the correct type and hoses are rated for the correct pressure.

34. The SWMS specified the following PPE to be worn by the high pressure gun work operator:

1. Kevlar Blast pants;

2. Kevlar Blast jacket;

3. Steel cap gum boots with Blast gaiters or Blast boots;

4. double eye protection;

5. helmet with face shield;

6. adequate gloves; and

7. hearing protection.

35. In the weeks leading to the incident, Mr Notaras and Mr Anderson raised an issue with the offender’s HSEQ Manager, Kirby Mugford, regarding the weight of wearing the Kevlar suit whilst performing the works. Undated handwritten amendments were made to the SWMS by Ms Mugford in consultation with Operations Manager, Billie Dowds, Mr Anderson and Mr Notaras, removing the requirement for the gun operator to wear Kevlar jacket and pants during gun work.

36. The handwritten amendments to the SWMS were signed by Mr Anderson and Mr Notaras and stated, “No need for Kevlar Jacket/Pants as Gun is in Casing with 3.6m of Lance”.

37. There was a revised version of the SWMS dated 24 August 2021 (revised SWMS) which incorporated the earlier handwritten amendments.

38. Ms Mugford and Mr Anderson stated to SafeWork NSW that the amendment was due to the risk of workers falling into the water whilst wearing the PPE suit. The revised SWMS did not contain other control measures to address the risk of working near water that would still require the use of Kevlar PPE to address the risk of working with high pressure water equipment.

39. There was no adequate hose restraint system in place at the time of the incident. The hose being used by Mr Notaras was fitted with a twin eye whip sock. The whip sock was not, however, secured to any shackle points or tied to any anchor points.

40. The Kevlar Sleeve/safety shroud used at the time of the incident to cover the joiner did not have cam buckle strap restraints to keep the shroud attached to the gun/lance assembly if the connector failed and a hose separator occurred. On the day of the incident, the shroud had been cable-tied onto the gun/lance assembly. Mr Notaras had not been trained or instructed in the use of cam buckle restraints for the shroud.

41. The offender had a Pre-Start Inspection and Maintenance Manual which included a pre start inspection/maintenance procedure which required:

1. check the hose connection fitting for damage;

2. hose connections to equipment or other hoses are restrained with braided stockings or are restricted in some other suitable way to stop their movement if the hose end fails; and

3. the Manual makes reference to AS4233.12013 5.5.1.2 Restraints.

42. The hose involved in the incident only had whip socks on one end which did not comply with the relevant Australian Standard or the requirement in the offender’s documentation.

43. On the morning of the incident, the job pre-start risk assessment and prestart inspection checklist were conducted, with the checklist having identified the hoses and fittings used by the offender’s workers were in good condition.

44. Mr Notaras said that prior to undertaking high pressure water jetting works every morning, that workers could generally check the hoses and make sure they had safety shrouds.

45. Prior to work commencing at 7:40am, Mr Anderson completed a High Pressure Water Blasting Equipment Prestart Equipment Checklist dated 1 September 2024. The checklist identified that in the event of non-compliances detected in the colour red “Do not operate, notify supervisor”.

46. The pre-start inspection checklist used on the day of the incident did not record that the shroud was missing cam buckle restraints or reference a specific requirement that the connector/shroud to be restrained. The job pre-start form completed on 1 September 2021 identified the risk of “pump failure” but did not record a potential hazard of failure of the gun/lance.

47. A toolbox talk was completed by Mr Anderson and Mr Notaras on the day of the incident. The toolbox talk identified “HPW Injuries” as a risk.

48. Following each shift Mr Anderson would take the equipment apart, check it and re-grease them. Ms Mugford would visit the site twice a week.

Systems of work following the incident

49. Post incident, John Holland did not continue to engage the offender and engaged a different contractor to complete the works.

50. In response to the incident, the offender took the following actions:

1. Ceased all hand-held getting gun/lancing works and fitted additional engineered controls as interim measures, until alternative safety shrouds were purchased and commissioned;

2. Procured alternative Kevlar safety shrouds which were larger in diameter so that a custom metal hose restraint device could be fitted;

3. Reinstated the use of full body Kevlar PPE for all ongoing hand-held jetting gun operations;

4. Created a specific risk assessment for the gun/lance assembly which identified the above risk control measures;

5. Developed and issued a reference guide manual for equipment maintenance instructions to be made available in each pump unit;

6. Conducted a review of its systems of work and communicated the review to the Australasian High Pressure Water Jetting Association (AusJet);

7. Engaged AusJet and suppliers of high-pressure water jetting equipment for advice; and

8. Reviewed the offender’s master SWMS for hydro blasting works and the new controls identified were added to all ongoing SWMS.

The Offender’s Case on Sentence

51. The offender read and relied upon the affidavit of Lisa Eliades affirmed 6 December 2024. The following is a summary of this evidence. I will try not to repeat matters already set out in the Agreed Statement of Facts.

52. Ms Eliades is the Chief Executive Officer of the offender.

53. She has been a director and 50% shareholder of the offender since 26 October 1998. The other director, Michael Flanagan, is the Operations Manager of the offender and the domestic partner of Ms Eliades.

54. Ms Eliades is actively involved in the offender’s business and has shared responsibility for WHS compliance, Human Resources, Project Management, Finance and Administration.

Expression of remorse and contrition

55. Ms Eliades stated in her affidavit that the offender is remorseful that it breached its duty under the Act and acknowledges that its failure to comply with its duty caused workers to be exposed to a risk of serious injury or death and that Mr Notaras suffered serious injuries.

56. She further deposed that she is truly regretful that the offender has come before the Court for a further offence as this falls outside of the offender’s safety compliance goals.

57. Immediately following the incident the offender notified Mr Notaras’ family. Ms Mugford travelled from Sydney to Canberra, collected Mr Notaras from the hospital on 3 September 2021 and transported him home. She also travelled to Batemans Bay and met with Mr Anderson. Mr Anderson was offered support through the offender’s Employee Assistance Program (EAP).

58. On 10 January 2022 Mr Notaras returned to work with the offender performing suitable duties. He was given the opportunity to undergo training for a Certificate IV in Work Health & Safety or to enhance his skills towards becoming a site supervisor through further training. Mr Notaras chose not to pursue these opportunities and following a restructure of the business in August 2023, his employment was ceased by way of redundancy.

59. Following the incident and during the offender’s investigation, Mr Anderson resigned from employment. At the time, Mr Anderson informed the offender that he did not want to be contacted.

About the offender

60. The offender commenced trading in 1998 providing mostly civil construction and demolition works. In or around 2008, the offender commenced high pressure water jetting services with Class B pumps.

61. The offender, at the date of Ms Eliades affidavit, employed 22 people in its business, including office-based management and administrative staff. The number of employees has halved since the incident on 1 September 2021.

62. Mr Flanagan is currently the Operations Manager. He has 26 years industry experience, holds a HPWJ Operator ticket and multiple other high-risk work licences. At the time of the incident, Billie Dowds was the operations manager. Ms Dowds held a Certificate IV in Project Management and other high-risk work licences.

63. Simon Namura Alves is the Hydro Manager. Mr Namura Alves is a civil engineer with 11 years’ experience in the hydro industry. His responsibilities include ensuring the hydro plant and equipment is serviced and maintained and confirming appropriate equipment is assigned to hydro projects. At the time of the incident the Hydro Manager was Douglas Catt, who had 14 years’ experience in the hydro industry. It is a requirement that the Hydro Manager hold a HPWJ Operator Ticket.

60. The offender employs eight Project Managers, who report directly to the Hydro Manager. All Project Managers are tertiary qualified civil or mechanical engineers. Those who supervise hydro work hold HPWJ Operator tickets. These managers are responsible for:

1. selecting the equipment for use for the project;

2. confirming the correct set up of equipment on site;

3. ensuring the SEWMS and pre-start processes are completed;

4. ensuring the crew understand their role;

5. ensuring PPE is worn; and

6. overseeing the operation of the equipment.

65. Since early November 2017, the offender has dedicated a resource to assist managing its health and safety responsibilities. Since this time the role has either been filled by a permanent employee or an external consultant. At the time of the incident, Ms Mugford filled the HSEQ Manager role. She held a Certificate IV in Work Health and Safety, HPJW User ticket and other high-risk work licences. The offender’s health and safety management is now completed with the assistance of an external consultant.

66. The offender currently has 11 live projects at various stages of completion.

Approach to WHS

67. The offender maintains accreditation of its Integrated Management System (IMS).

68. The offender is also an active member of AusJet, an organisation responsive to the needs of the industry and provides a strong network of member companies and businesses seeking to provide a safe work environment through improved standards, training and advocacy. The offender receives HPWJ related incident alerts as well as regular updates on the relevant Australian Standards. The offender also collaborates in reviewing the industry best practices.

69. The offender has a prior conviction under the Act, which arose from an incident on 30 September 2015. Since that time, the offender has invested significant resources into strengthening its health and safety system. At this time, Ms Eliades and Mr Flanagan were not actively involved in the business as they were caring for their son who was undergoing cancer treatment.

70. Since this incident in 2015, formal training courses have become more readily available for Class B water jetting systems, and the offender has maintained a prerequisite that all operators and assistants/users be formally trained in operation and/or use of Class B high-pressure water jetting systems.

The offender’s WHS system

71. In November 2017, the offender engaged a full time WHS Manager to review and provide advice and guidance as to safety. At that point, the previous health and safety system was overhauled, and new processes and documents implemented.

72. In May 2020, Ms Eliades approved the engagement of Dynamic HSEQ Solutions to develop a new customised health and safety management system and conduct a gap analysis. This engagement began from 15 June 2020 and lasted for three years seeing the offender’s system accredited to ISO standard by BSCIC.

73. In August 2023, a depository server that held the offender’s IMS was subject to a cyber-attack. The IMS was held at ransom for US$500,000. The offender did not pay the demand and chose to rebuild its systems at a cost to the business. As a result of the cyber-attack, many of the offender’s historical depository-based health and safety records could not be recovered.

74. The offender’s health and safety system is centred on the competency of its staff to perform high risk work. At the commencement of employment each employee is issued a copy of the Employee Handbook which sets out the offender’s expectations of workers in respect of health and safety and includes a table setting out health and safety roles and responsibilities.

75. From around 2018 workers were required to complete a corporate induction covering health and safety. Both Mr Notaras and Mr Anderson completed this induction in 2019 and a further online induction in 2020 in duty of care and legislative requirements, incident management, risk management and managing plant and equipment awareness.

Hydro training

76. Following the incident in 2015, the offender’s policy is that no worker is permitted to undertake hydro work unless they had been formally trained by an RTO and assessed as being competent to do so. This requires completion of the HPWJ User course of HPWJ Operator course, which is paid for by the company.

77. Both the HPWJ Operator and User certification is valid for two years. The offender pays for its workers to be trained and re-certified, which requires re-completion of the courses. Both courses have theoretical and practical components and are two days in duration.

78. From 30 June 2016 to 1 July 2024, the offender spent an average of $74,866 on staff training and re-certification per financial year.

79. The expiry of employee certifications and licences are tracked via an online app called “Assignar”.

80. Once hydro workers obtain one of the two certifications, they are then taken through a hydro blasting induction with the Hydro Manager and/or a Project Manager to ensure workers are familiar with the equipment and expectations.

81. Newly certified workers are initially allocated to work with more experienced operators and are observed during their first six months of work to verify their competence.

82. Since 2017 the offender has completed a policy that at least one worker allocated to a project must hold a valid First Aid certification. All trucks are fitted with First Aid kits.

83. The offender also undertakes in-house training for hydro works which may be conducted in groups or individually.

Master SEWMS

84. Following the incident in 2015, the offender developed and introduced a Master SEWMS which sets out a detailed list of general risks and controls for hydro work in a variety of applications. It is a live document and has been reviewed and updated by senior staff and project managers at quarterly meetings.

85. Before each project, a risk assessment is undertaken having regard to the job requirements and equipment to be used. The Master SEWMS is amended to incorporate additional risks identified and controls prior to submission to the client.

Plant and equipment risk assessments

86. From approximately early 2021, the offender also introduced a process of undertaking a risk assessment for all key assets.

Maintenance and inspection of equipment

87. Since May 2019, the offender has used Assignar to manage maintenance and inspection of hydro equipment. Assets are logged in Assignar and service/maintenance dates are logged in accordance with the manufacturer’s recommendation or at a frequency determined by the Hydro Manager. The Assignar system notifies the offender’s workers of upcoming service requirements.

88. All hoses are now tracked through a separate system hosted by the current supplier, Abdex. The hoses are microchipped and can be scanned for asset details, certification documents and service history.

89. Equipment is inspected in the warehouse prior to it being packed into vehicles to send to site by the Hydro Manager and/or Project Manager. Equipment is also inspected onsite prior to use.

PPE

90. At a baseline, it is mandatory that every hydro operator wears a specialised blast suit. This did not occur for the project works on 1 September 2021. The offender uses TST/Hammelmann “Gamma” Kevlar clothing, which provides full protection including the entire area around the forearm and back of the hand (integrated hand protection). At least two blast suits are kept in every truck.

91. For hydro cleaning work, a face visor mask and protective glasses are also required to be used. All hydro workers are provided with their own personal air ventilated helmet. Workers are required to wear Kevlar foot covers.

92. From 30 June 2016 to 1 July 2024, the offender spent on average $64,444 on PPE gear per financial year.

Systems of work onsite

93. Once the project requirements are determined, the appointed Project Manager selects the required equipment with the Hydro Manager. The equipment is packed and transported to site. At the time the equipment was packed for the Batemans Bay job, no issues were identified.

94. The offender’s onsite pre-start processes involve completion of:

1. The High-Pressure Water Blasting Equipment Pre-start Inspection Checklist;

2. A documented Pre-start Risk Assessment;

3. A documented Toolbox Talk; and

4. Reviewing and signing onto the project SEWMS.

95. Workers are instructed that the pre-start processes must be completed prior to any work being undertaken.

96. The checklist is completed using the Assignar app. Once completed, it is automatically emailed to the offender’s Hydro Manager, HSEQ Manager and Operations Manager who review the checklist to confirm whether any non-compliances have been identified.

97. During the work at the Batemans Bay job, none of the checklists completed by Mr Anderson identified any non-compliances. If non-compliances had been detected, it was expected that Mr Anderson contact one of the managers for advice as to how to proceed.

98. Pre-start Risk Assessments and Toolbox Talks are conducted daily to assess local area hazards before work commences.

Site audits and verification

99. The offender conducts onsite audits and spot checks to verify workers are implementing safety systems on site. This includes reviewing the site specific SEWMS and checking pre-job risk processes are completed. Prior to the incident this was conducted approximately twice per month.

Other

100. From around 2019 the offender commenced holding company-wide Toolbox talks on an approximately quarterly basis. Workers are paid to attend the meetings.

101. The offender conducts weekly project meetings onsite and via Microsoft Teams which are attended by the Operations Manager, Hydro Manager and Project Managers. These meetings provide an opportunity for managers to raise any issues regarding plant, equipment and work processes.

102. From around July 2020, the offender also implemented a HSEQ Alert process whereby all workers were informed of incidents and near misses at the offender’s job sites.

The work at Batemans Bay

103. Ms Eliades in her affidavit detailed the work to be undertaken at the site as outlined above in the Agreed Statement of Facts.

104. She stated that given the lack of complexity of the job and having regard to Mr Anderson’s expertise, it was determined he was appropriate to lead the project.

105. At the time of amending the SWMS to change the PPE requirements, neither Ms Mugford nor Ms Dowds were aware of any issues with the other safety devices for the equipment, specifically in relation to the connections for the shroud or the hose restraint system.

106. Ms Eliades stated in her affidavit that she cannot explain why there was no adequate hose restraint system in place at the time of the incident. If the gun did not have shackle points it should not have been selected and packed to be used for the project and tagged out for repair or replacement.

107. She further stated that she had reviewed the photographs taken by SafeWork NSW and NSW Police and it is not clear to her how the connector failed as the operating pressure of the pump was below the pressure rating of the connector.

Steps taken by the offender following the incident

108. Following the incident the offender took the steps set out above in the Agreed Statement of Facts.

109. In addition to the above, Ms Eliades stated in her affidavit that for additional security the offender now uses rated carabiners instead of rated D-shackles to join hose restraints. The offender now only purchases hoses fitted with built-in hose restraint systems fitted underneath many protective lawyers that require rigorous tampering to be removed. The offender also now uses thicker walled joiners to secure connections.

110. All hydro jobs, irrespective of their complexity, are now managed by a Project Manager.

111. During the offender’s interactions with SafeWork NSW, it adhered strictly to all directives and requirements. The offender ensured that all requested information was provided in a timely and professional manner and individuals were made available for interviews as requested.

112. Ms Eliades deposed that she and Mr Flanagan were not actively involved in the daily operations of the business during the periods in which the incidents involving Josh Tilocca (the prior conviction) and Mr Notaras occurred due to their son’s cancer treatment. They resumed their roles in the business in 2022 following their son’s passing in December 2020.

Consideration

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

Objective seriousness

114. The risk of the hose detaching from the gun during high pressure water blasting was known to the offender and referred to in considerable detail in its safety documents. The offender had identified and sought to implement the required control measures in its safety systems. Regrettably, the equipment used on the day of the incident was not fit for purpose because the safety shroud and the whip socks could not be properly attached. Notwithstanding that, Mr Anderson a very experienced employee, failed to prevent the use of that equipment or seek advice on how to remedy the problem. Further, Mr Notaras had not been trained that he was required to attach the safety shroud via a cam buckle. The offender had a detailed and comprehensive safety system, which if it had been implemented as intended, the incident would not have occurred.

115. The likelihood of the risk coming home if appropriate control measures were not taken was moderate.

116. The control measures that should have been implemented were simple, inexpensive and well known to the offender.

117. The risk included a risk of death.

118. The injuries sustained by Mr Notaras were serious.

119. I have taken into account the maximum penalty for the offence.

Deterrence

120. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

121. There is a need for specific deterrence in this case, but it is reduced to some extent. I have previously sentenced the offender for an incident that occurred on 30 September 2015 resulting in an injury to Mr Tilocca: SafeWork NSW v Silver Raven Pty Ltd [2019] NSWDC 425. The upgrade to the offender’s safety systems that occurred following the earlier incident were thorough and comprehensive. I am satisfied that the offender is committed to complying with the legislation and that this offence was committed as a consequence of conscious disobedience with its safety systems, which was difficult to detect and prevent. Nevertheless, the offender has accepted responsibility for its failings and implemented further measures to its already impressive safety systems. I also accept that it would have been extremely difficult for the offender to focus on guaranteeing the safety of its workers in a dangerous industry, when its directors were distracted by a family tragedy that unfolded over an extended period and required them to be heavily reliant on others to ensure compliance with the legislation.

Aggravating factors

122. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the 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]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Notaras are sufficient to establish this aggravating factor.

Mitigating factors

123. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. For the reasons I have already expressed, I am satisfied that the offender is committed to the safety of its workers and has demonstrated by the steps it has taken in response to the 2015 incident and the present incident, that it has good prospects of rehabilitation.

124. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Eliades, on behalf of the offender, has expressed remorse for the injury sustained by Mr Notaras and accepted responsibility for its failure to comply with its duty under the Act. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

125. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

126. The offender co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

127. The offender did not contend that it had a reduced capacity to pay a fine.

Penalty

128. Silver Raven Pty Ltd is convicted.

129. I have taken into account the Victim Impact Statement of Mr Notaras.

130. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

131. I impose a fine of $180,000.

132. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

133. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 06 February 2025