SafeWork NSW v The Danebritt Group Pty Ltd

Case •

[2025] NSWIC 21

•

14 November 2025

No judgment structure available for this case.

Industrial Court


New South Wales

Medium Neutral Citation: SafeWork NSW v The Danebritt Group Pty Ltd [2025] NSWIC 21
Hearing dates: 5 September 2025
Date of orders: 14 November 2025
Decision date: 14 November 2025
Before: Paingakulam J
Decision:

(1) I convict The Danebritt Group Pty Ltd of the offence as charged.

(2) I impose a fine of $90,000.

(3) The Danebritt Group Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

(4) Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 3 — risk of other persons being struck by collapse of cabinet that was not securely fixed to a wall — workers not provided instructions on how to assemble and fit cabinet in English — worker did not use all L-brackets provided —section 10(1)(a) application — not an appropriate matter for disposal pursuant to s 10(1)(a)

SENTENCING — relevant factors on sentence — De Simoni principle — pleaded risk could lead Court to De Simoni error — pleaded risk amended — both parties bear a responsibility to ensure that material tendered on sentence does not offend De Simoni rule — evidence that permitted an inference that the workers were exposed to a risk of serious injury or death disregarded

SENTENCING — relevant factors on sentence — aggravating factors — mitigating factors —deterrence — reduced need for specific deterrence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Barton v The Queen [2009] NSWCCA 285

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

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

BW v The Queen [2011] NSWCCA 176

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

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski [2009] NSWCCA 102

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

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

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

SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165

SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4

SafeWork NSW v Menai Civil Contractors Pty Ltd [2025] NSWIC 8

Schultz v Tamworth City Council (1995) 58 IR 221

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

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

Wong v Melinda Group Pty Limited (1998) 82 IR 118

WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
The Danebritt Group Pty Ltd (Offender)
Representation:

Counsel:
E Kerkyasharian (Prosecutor)
S McIntosh (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Wotton Kearney (Offender)
File Number(s): 2024/431763
Publication restriction: Nil

JUDGMENT

  1. The Danebritt Group Pty Ltd trading as Woodland Fitouts (Danebritt) was engaged by Luxottica Retail Australia Pty Ltd (trading as OPSM Lismore) (Luxottica) as the principal contractor to carry out an interior fit out at OPSM Lismore (site). As part of this fit out, workers engaged by Danebritt installed a Ray-Ban wall display cabinet at the site on 18–19 November 2022. On 24 November 2022, Luxottica workers Ms Olivia Simmons and Ms Norilyn Capage were stocking the cabinet when it pulled out from the wall, falling on top of them.

  2. Danebritt appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety (WHS) duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty contrary to s 33 of the WHS Act.

  3. The risk particularised at paragraph 9 of Annexure A to the Amended Summons was as follows:

“The risk was the risk to other persons, in particular Ms Simmons and Ms Capage, suffering serious injury or death as a result of being struck by the collapse of a cabinet that was not securely fixed to a wall.”

  1. At the outset of the hearing, and in recognition that the offence is a s 33 offence, the prosecutor sought and was granted leave to amend that paragraph to delete the words “suffering serious injury or death” on the basis that they offend the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni). Accordingly, for the purposes of the s 33 offence, the risk pleaded was as follows:

“The risk was the risk to other persons, in particular Ms Simmons and Ms Capage, as a result of being struck by the collapse of a cabinet that was not securely fixed to a wall.”

  1. Danebritt has entered a plea of guilty to a charge particularised in that manner and I am satisfied that the pleaded risk, as amended, is able to be taken into account without contravening the rule in De Simoni.

  2. By its plea of guilty, Danebritt accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“(a) Assemble the cabinet by using all components supplied with the cabinet such as the L-Brackets.

(b) Sufficiently securing the cabinet to the wall by using all of the L-brackets supplied with the cabinet.”

  1. The maximum penalty for this offence is a fine of 5,770 penalty units ($620,101).

The evidence

  1. SafeWork NSW tendered a Revised Statement of Agreed Facts (RSAF) with the consent of Danebritt. That RSAF included paragraphs 26–28 which read as follows:

“[26] The Incident was captured on CCTV footage.

[27] At approximately 10:54am the footage shows Ms Simmons and Ms Capage stocking the display draws of the base unit of the Cabinet.

[28] At approximately 11:01am the wall display units fell on top of Ms Simmons and Ms Capage trapping them underneath. Nearby workers and members of the public come (sic) to the immediate assistance of the women. It took approximately eight men to lift the cabinets and free the women.”

  1. Notwithstanding that the facts were purportedly agreed, Danebritt in effect maintained an objection to these paragraphs on the basis that they offend the principle in De Simoni. When asked whether the RSAF was in fact agreed, counsel responded as follows:

“It is a statement of agreed facts in the sense that that was the condition upon which the summons was amended. But the principles that your Honour has to apply in dealing with it still exist, and so we do have, for the same reason, I’m pretty sure it’s been taken in respect of this, have an issue with these paragraphs that can be dealt with, I think, in the same way that your Honour is proposing to deal with them. If your Honour is of the view that your Honour can’t have regard to them, doesn’t matter whether or not they’re agreed, your Honour can’t have regard to them.”

  1. In response to that objection, the prosecutor did not press the final two sentences of paragraph 28. Accordingly, for the purposes of sentence, paragraph 28 reads as follows:

“[28] At approximately 11:01am the wall display units fell on top of Ms Simmons and Ms Capage trapping them underneath.”

  1. It was said by the prosecutor that this is consistent with the risk pleaded in the Amended Summons. The risk pleaded in the Amended Summons says only that Ms Simmons and Ms Capage were struck by the falling cabinet. That is a very different proposition to having the cabinet fall on top of them, trapping them underneath it.

  2. The authorities concerning the tender of material which would contravene the principal in De Simoni were set out in SafeWork NSW v Menai Civil Contractors Pty Ltd [2025] NSWIC 8 at [6]. In short, where the prosecutor has accepted a plea of guilty to an offence less serious than warranted by the facts, the agreed facts tendered on sentence should not contain any facts that would have rendered the offender liable to a more serious penalty, and this may result in a degree of artificiality in the fact-finding exercise.

  3. I cannot take into account the fact of the wall display units falling on top of Ms Simmons and Ms Capage, trapping them underneath, without inferring a risk of serious injury or death. Even without the reference to the weight of the cabinet, the fact of Ms Simmons and Ms Capage being trapped underneath it signifies that it was of considerable weight. Accordingly, for the purposes of sentence, I disregard the words “on top of Ms Simmons and Ms Capage, trapping them underneath”. The artificiality in that approach is a consequence of the charge pursued by the prosecutor.

  4. In addition, Paragraph 13(a) of the RSAF provided as follows:

“13. The cabinet was supplied to Luxottica who in turn supplied it to Danebritt, in crates and consisted of:

(a) Three separate wall display units that were pre-fabricated but required to be assembled together. Each unit weighed approximately 200kg.”

  1. In view of the risk pleaded by the prosecutor, which includes persons being struck by the collapse of the cabinet, I cannot take into account the weight of the wall display units (being a combined total of 600 kilograms).

  2. While the responsibility to ensure that the material tendered on sentence does not offend the rule in De Simoni lies primarily with the prosecutor, Barton v The Queen [2009] NSWCCA 285 per Howie J at [18] makes clear that both parties bear this responsibility. The practice by an offender of pleading guilty to the terms of a summons or agreeing to the tender of a statement of agreed facts and then submitting to the Court that some of the content of that “agreed” document is contrary to established principle and should be disregarded is to be deprecated.

  3. The Prosecution Sentence Tender Bundle contained the following material in addition to the Amended Summons and the RSAF:

  1. ASIC Report: The Danebritt Group Pty Ltd;

  2. Prior Convictions Report: The Danebritt Group Pty Ltd;

  3. a series of photographs of the incident scene taken by SafeWork Inspector Michael Kranendonk;

  4. Woodland Shopfitting Site Supervisor Guidelines;

  5. OPSM Fitout Package Plans;

  6. Safe Work Method Statement: Shopfitting;

  7. install instructions for the wall unit the subject of the incident; and

  8. Inspection Test Plan.

  1. In coming to an appropriate sentence, I have had regard to the evidence before the Court, except for that material which expressly states or permits an inference that Ms Simmons and Ms Capage were exposed to a risk of serious injury or death. What follows is a summary of the evidence relevant to the offence to permit an understanding of the sentence imposed.

Background

  1. Danebritt is a Queensland based company. Its business involves the design and construction of interior fit outs for retail, hospitality and office spaces, and its sole director is Mr Michael Casablanca. At the time of the incident, Danebritt employed approximately 52 workers and had been in business for approximately 19 years.

  2. Luxottica operated an optometry practice at the site. On 25 October 2022, Danebritt commenced work as the principal contractor to carry out an interior fit out at the site. Danebritt’s project manager was Mr Bradley Greinke. The site supervisor was Mr Beat Schlatter, who had been employed by Danebritt for 12 years and had 30 years’ experience in the industry. Also working at the site was Mr Jordan Maestracci, a fourth-year apprentice slated to complete his apprenticeship with Danebritt in May 2023.

The installation of the cabinet

  1. As part of the fit out, Danebritt was required to install a Ray-Ban display cabinet sourced by Luxottica from a Chinese manufacturer in prefabricated form. This was unusual for Danebritt as it ordinarily designed and supplied its own cabinetry. The cabinet consisted of three separate prefabricated wall display units and a base unit with four separate display drawers. Also supplied were 15–20 L-brackets and a single page instruction sheet that was written in “Chinese” characters, with 2D images and measurements also in Chinese characters.

  2. Mr Maestracci and Mr Schlatter discussed that Mr Maestracci would install the cabinet. However, Mr Maestracci was unable to understand the instruction sheet, and either during or just prior to installation, asked Mr Greinke to provide additional instructions in English. In response, Mr Greinke provided Mr Maestracci with a diagram of a different cabinet which was similar to the instruction sheet that came with the cabinet. Mr Greinke also took steps to obtain a complete copy of the manufacturer’s instructions from Luxottica, but these were not provided until after the incident.

  3. Mr Maestracci had installed Ray-Ban cabinets in the past. However, neither Mr Maestracci nor Mr Schlatter had previously installed this model of cabinet, nor one as large as this. Mr Maestracci installed the cabinet on 18 and 19 November 2022, with Mr Schlatter monitoring his progress and remaining available to assist if required. Mr Maestracci constructed each wall display unit separately and affixed them together. He then fixed each display unit to a plasterboard wall using four of the L-brackets supplied with the cabinet. No modifications or reinforcements were made to the wall prior to installation. When he had finished installing the cabinet, Mr Maestracci attempted to ensure the safety and stability of the cabinet by pulling on it.

  4. The site was handed over to Luxottica on 22 November 2022. On 24 November 2022, Ms Simmons and Ms Capage were stocking the display drawers of the base unit of the cabinet when it fell off the wall.

  5. An inspection of the plasterboard wall as part of a subsequent SafeWork NSW investigation located only one screw hole in the wall for the far side cabinetry. There were no screw holes apparent where Mr Maestracci said the centre and right brackets were installed. The cabinet’s installation instructions, provided to Danebritt by Luxottica on or about 1 December 2022, specified the need for the wall to be reinforced prior to installation. They also required 24 L-brackets to be used to affix the cabinet to the wall.

Systems of work prior to the incident

  1. Danebritt’s “Site Supervision Guidelines” required workers to reflect on fit out drawings and measurements and communicate with the project manager if any issues arose that were not consistent with the scope and drawings. The architectural drawings for the fit out provided to Danebritt by Luxottica required the custom Ray-Ban units to be fixed to both the ceiling and the floor and for the contractor to ensure their structural integrity and stability. Mr Maestracci stated that he was unaware of this requirement despite having read the OPSM Plans and having gone through them with Mr Schlatter.

  2. Danebritt had a Safe Work Method Statement (SWMS) for shopfitting which was revised in March 2022 and signed by Mr Maestracci and Mr Schlatter on 1 November 2022. It required frames to be secured and adequately braced to take loads such as cabinets and mirrors. In failing to reinforce the plasterboard wall prior to the installation of the cabinet, Mr Maestracci did not adhere to either Danebritt’s SWMS or the OPSM Plans.

Systems of work after the incident

  1. Danebritt now requires clients to provide an electronic copy of installation instructions prior to work commencing. An Inspection Test Plan now requires the project manager to acknowledge that installation instructions have been supplied in English, and for the joinery to be installed as per the supplied instructions and plans. It also requires the site supervisor and project manager to check the quality of the joinery once installation is complete. The client, the site supervisor and the project manager all sign off on the Inspection Test Plan after conducting a walkthrough of the site on completion of the installation project.

Offender’s case on sentence

  1. Danebritt relied on the affidavit of Mr Michael Casablanca, sworn 21 August 2025. The following is a summary of his evidence in addition to matters already set out in the RSAF.

  2. Mr Casablanca is the sole director of Danebritt, which currently trades under the name Woodland Fitouts. He founded the company in April 2004. As Managing Director, Mr Casablanca has ultimate responsibility for Danebritt’s operations and performance. He has 30 years’ experience in the construction industry and 20 years’ experience as a registered builder, restricted to shopfitting. He has been a member of the Interior Fit Out Association and Master Builders Queensland since 2004. Membership of both organisations involves attending multiple safety seminars and receiving safety notifications and updates.

Expression of remorse and contrition

  1. Mr Casablanca, on behalf of Danebritt, expressed deep regret that Danebritt had breached its duty and committed the offence charged and apologised to the Court and all impacted parties.

  2. Mr Casablanca stated that the incident has affected him and all his staff. At the time of the incident, he was responsible for safety matters. He has sought to ensure that Danebritt has taken appropriate action in response to the incident and will continue to do so to ensure a similar breach does not happen again. He said that no other incidents have occurred since the incident the subject of the current proceedings.

Safety systems in place at the time of the incident

  1. Mr Casablanca stated that Danebritt takes pride in fostering a culture which encourages all workers to take responsibility for safety concerns and raise them with senior management. Specific Workplace Health and Safety Management Plans and SWMS are put in place for each project before new work commences. A “Safety Folder” on site included Project Manager Guidelines, the site Safety Plan and insurance details, induction forms, site information such as emergency contacts, Toolbox minutes, a plant and equipment register and a staff sign in and out register. A management software system prompted daily site audits and WHS checks.

Systems of work after the incident

  1. Immediately after the incident Mr Casablanca directed Danebritt management to implement short term recurrence prevention measures. These included holding formal meetings with all workers regarding safety procedures and conducting workshops between future clients and the Danebritt site team to ensure workers are competent to fit and install joinery supplied by clients. They also included requiring progress photographs to be taken during installation and provided to site supervisors, project managers and clients.

  2. Longer term prevention strategies included requiring workers to attend a pre-start meeting before works begin to discuss plans and installation instructions. Safety management tools have been moved to an automated system, and a dedicated Workplace Health and Safety Manager (WHS Manager) has been employed. Workers installing joinery are now required to sign the installation instructions to confirm that they were followed and upload a photographic record of the installation process to the project management software.

  3. Mr Casablanca works with the WHS Manager to ensure that Danebritt’s recruitment process includes a discussion of safety issues, ongoing training is provided to staff, the company’s Site Supervisor Guidelines and Project Manager Guidelines are updated at least annually, there are regular site supervisor meetings and project management meetings where WHS updates are distributed and to ensure that WHS plans are developed for each site. They also ensure that all project sites are inspected regularly, and random audits occur.

  4. Danebritt engaged WHS consultants both before and after the incident. Prior to the incident consultants made recommendations on safety measures, conducting audits and undertaking WHS gap analysis. Since the incident, they have also assisted with the implementation of the new WHS management software. Danebritt’s total safety spend following the incident is $150,000 to $175,000 annually.

Other mitigating factors

  1. Mr Casablanca stated that, as part of the tender process, Danebritt must declare any convictions. Declaring a WHS Act conviction would disqualify the company from winning tenders from those clients who have strict requirements in that regard. Furthermore, a conviction may impact the company’s ability to qualify for a CM3 certification, which would in turn impact its capacity to qualify for and win business.

  2. Danebritt’s community involvement includes the provision of financial support to Ronald McDonald House Charities South East Queensland, the Children’s Hospital Foundation and A Brave Life. In addition, Danebritt hosts a monthly barbecue during which workers make donations to raise funds for local community charities.

  3. Mr Maestracci had been assessed by Mr Schlatter as a competent fourth-year apprentice who was more than capable of undertaking tasks performed by a qualified tradesman.

Oral evidence

  1. In cross-examination, Mr Casablanca was unable to recall an incident that occurred on 10 April 2025 in which an electrician had suffered an injury, which was referred to in a document annexed to his affidavit from which details had been redacted. The incident ultimately turned out to be very minor, but Mr Casablanca was unable to give any detail about it despite having viewed the unredacted document when affirming his affidavit less than three weeks earlier.

  2. When pressed about Danebritt’s engagement of WHS consultants, Mr Casablanca was unable to give any specifics of their engagement beyond a six-month contract entered into in early 2020, stating only that he was confident that they were engaged and that the current WHS consultant, Pillar Consulting, provides services on an ad hoc basis. He could not recall the last time that Pillar Consulting was engaged.

  3. When pressed about Danebritt’s employment of a dedicated WHS Manager, Mr Casablanca conceded that the relevant employee had previously worked for Danebritt in another role, and that their “dedicated” WHS Manager role includes human resources administration. He further conceded that his understanding that site inductions were occurring was based on the forms provided to him on which the “induction given by” field was left blank and on which one employee had ticked “No” to the question “Do you know where to obtain first aid?”. He also conceded that Mr Maestracci had signed in and out at the site for two days prior to the date shown on his induction form.

  4. Mr Casablanca was shown the management plan for the site. He identified changes as being those pages which stated the project and site location details. He was unable to explain why the management plan contained a clause dealing with excavation and trenches, given that they were not relevant to the fit out of the Lismore OPSM store. Finally, he conceded that while a WHS Act conviction was a relevant consideration and a required field in the CM3 database, it was not a matter that would automatically disqualify Danebritt from winning a tender, that not every tender required Danebritt to declare any prior convictions and that there were smaller projects undertaken by Danebritt which did not require a tender process at all.

  5. In re-examination, Mr Casablanca stated that the CM3 database is used by 60 to 70% of Danebritt’s clients, including most shopping centres. He clarified that the worker injured in the April 2025 incident was an employee of an electrical subcontractor, not Danebritt. He also explained that, at the time of the incident giving rise to the subject offence, Danebritt used a project management system called Nexvia to manage records, including records of inductions. Mr Casablanca and the relevant project manager would review the Nexvia software every few days to ensure inductions were happening. It was the site supervisor’s job to upload information for review on Nexvia.

  6. Mr Casablanca clarified that when he said he had employed a “dedicated” WHS Manager, he meant someone “to oversee and manage the daily workplace health and safety requirements of the company”. He maintained that there were ongoing relationships in place with WHS consultants. Danebritt would meet with the consultants and use the information provided to improve their safety requirements and culture, not just to meet safety regulations. They also made improvements as a result of feedback from workers and had a strong culture of continuous improvement.

Consideration

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

  2. I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).

  3. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].

Factual issues

  1. In issue in these proceedings was the extent to which it ought to be accepted that Danebritt attended to safety matters both prior to and after the incident. Central to that determination is an assessment of Mr Casablanca’s evidence. A summary of that evidence is set out above. It was unreliable in several respects. In cross-examination, Mr Casablanca gave detail about the “Nexvia” project management system which was used to manage site safety documentation, about which no mention was made in his evidence-in-chief. Further, a number of the admissions that he made in cross-examination significantly undermined his evidence-in-chief.

  2. Annexed to Mr Casablanca’s affidavit were 15 Site Induction Record Forms for the site. None of the forms were signed by a person said to have conducted the induction session. The date of induction for all but one form (to which I will return), where it was recorded, ranged from 27 October 2022 to 10 November 2022. Many of the forms did not record an induction date at all. Only one form recorded a blue card number. One worker filled out the form to indicate that he did not know where to obtain first aid. His answers to the remaining questions on the form are such that this answer is unlikely to have been inadvertent. First aid information is a basic component of any site induction. Accordingly, that circumstance leaves open no reasonable possibility other than that the worker had not been inducted to the site before filling out the Site Induction Record Form.

  3. One induction form appears to be dated 3 July 2024, well after the incident but prior to the commencement of the subject proceedings. It is unlikely that such a dating error would have occurred if the form was completed in 2022. That is not sufficient, either considered in isolation or together with the many undated forms, for me to make a finding beyond reasonable doubt that it was completed retrospectively to manufacture a paper trail. It may be an induction form from a subsequent OPSM Lismore project. Accordingly, I make no finding about the circumstances which led to its completion. However, because the forms were not signed by the person conducting the induction, several of them were undated and one worker indicated that he did not know where to obtain first aid on site, I find beyond reasonable doubt that the practice at the site was for Site Induction Record Forms to be filled out by the workers as part of their onboarding, without a requirement to participate in any site induction before they did so. That is not to say that no site induction was occurring. However, to the extent that it was occurring, it was independent of the requirement for workers to fill out the Site Induction Record Form.

  4. Mr Maestracci’s form states that he was inducted onto the site on 27 October 2022. As noted above, the sign in and out register for the site records Mr Maestracci as having worked on site on 25 and 26 October 2022. When cross-examined about that fact, Mr Casablanca explained that “there wouldn’t have been an induction on every day that he entered the premises” but stopped short of conceding, as is obvious, that Mr Maestracci was permitted to work on site for at least two days before completing a Site Induction Record Form.

  5. Mr Casablanca’s evidence in cross-examination to the effect that the only site-specific material on the WHS management plan for the site was those parts of the plan recording site details and contacts for the project significantly undermines his evidence-in-chief that it was Danebritt’s practice to develop a specified WHS management plan for each site. That the content about safety procedures to be implemented at the site was generic was demonstrated by the inclusion of material about excavating trenches in the OPSM Lismore document that Mr Casablanca was unable to explain, having accepted its irrelevance to the project.

  6. Mr Casablanca’s evidence-in-chief about the engagement of Bramwell Partners as WHS consultants “[b]etween July 2019 to April 2023” was also problematic. It is clear from the documentation annexed to Mr Casablanca’s affidavit that there was a contractual arrangement in place from 23 January 2020 for a 6-month period commencing February 2020, engaging Bramwell Partners for eight hours per month with a defined scope of works. When cross-examined about that issue, Mr Casablanca was unable to say precisely how Bramwell Partners was engaged after that point. He did say “[t]hat’s not to say that they weren’t engaged on one-on-one scenarios after that”. When pressed about the nature of those engagements, Mr Casablanca stated that they were engaged “with the same engagement” (eight hours per month) and doing exactly the same things. That is very different to being engaged for “one-on-one” scenarios, which is itself different from the tenor of Mr Casablanca’s evidence-in-chief that there was a continuous engagement over an almost four-year period.

  7. On the evidence as a whole, while I accept that Bramwell Partners may well have been engaged by Danebritt after August 2020, I am unable to make a finding, on the balance of probabilities, about the extent of that engagement.

  8. Another difficulty with Mr Casablanca’s evidence-in-chief was his assertion about having appointed a dedicated WHS Manager. It is worthwhile setting that evidence out in full:

“Following the breach, I have sought to bolster [Danebritt’s] focus on safety by employing a dedicated Workplace Health and Safety Manger, who is remunerated at $100,198.00 (inclusive of superannuation). The role of the Workplace Health and Safety Manager is to promote a safe and healthy working environment for all staff and ensure [Danebritt] complies with all relevant work, health and safety regulations. The role of the Workplace Health and Safety Manager also involves performing workplace health and safety audits in the factory, office and on project sites, as well as reporting workplace health and safety issues to me. A copy of the job description of the Workplace Health and Safety Manager role is exhibited at page 28 ...”

  1. The job description itself states that it is for a “WH&S Manager/HR Coordinator”. The HR duties include conducting exit interviews, assisting with staff performance reviews and conflict resolution and “Apprentice administration”. In cross-examination, it emerged that the incumbent in the position, who commenced in the role on 5 June 2025, more than two and a half years after the incident, was a person who until that point was employed by Danebritt doing administration, including WHS administration. However, the employee concerned had then completed her Certificate IV in workplace health and safety and had become responsible for the day-to-day auditing of tasks and implementation of changes identified by Pillar Consulting.

  2. Mr Casablanca stated that the incumbent received a pay rise when she assumed the role but was unable to quantify it, even in approximate terms. He affirmed that the role was “solely work health and safety” before volunteering that it also included a number of human resources tasks, a matter reflected in the provided job description, but denied that the WHS Manager was required to perform some of the human resources tasks listed in it, such as conflict resolution and conducting performance reviews, beyond taking minutes of performance review meetings. I do not accept Mr Casablanca’s evidence that the role was a “dedicated” WHS role. While Mr Casablanca sought to explain the intent of that evidence in re-examination, I accept the prosecutor’s characterisation of that position as “window dressing”, particularly in view of its commencement in June 2025, a few short weeks before the sentence hearing.

  3. In re-examination, Mr Casablanca addressed Danebritt’s safety culture as follows:

“The fact that we continually, before the incident, engaged with a consultant, that we met with a consultant, we would have meetings with the consultant, and then from the information provided - the consultant, we would continue to improve our workplace health and safety and our occupational health and safety requirements. And it wasn’t just to meet regulations; it was to improve our culture. So that’s why we had toolbox meetings. That’s why we asked people from the floor to bring incidents forward, how we could be better. That was at our factory - one-month factory meetings that we conducted which I was the chair of those meetings. That was why we created guidelines, project manager guidelines, site supervisor guidelines. That’s why I was involved in meetings.

That’s why it was on agenda as part of the toolbox meetings that was regularly happening not just on the actual sites but site supervisor meetings with those site supervisors with site and safety being an agenda part of that and bringing that information up forward for those - for how we could continually improve as well as the apprentices - as well as having separate communication with the - separate meetings with the apprentices so they felt comfortable in an environment to bring anything forward that they may have felt that they couldn’t do in other surroundings. So I think safety was a big part of our culture and the - it wasn’t just about ticking and flicking. It was the continual improvement of safety which we have shown that - over the number of years, we have continually have done that.”

  1. I accept that Danebritt had safety systems in place, and processes designed to facilitate continuous improvement in that regard. However, the totality of the evidence before the Court does not permit a finding that Danebritt had a strong safety culture at the time of the incident.

  2. Finally, it is necessary to address Mr Casablanca’s evidence about the potential impact of a conviction on Danebritt. In his evidence-in-chief, he was unequivocal in his belief that a conviction would, of itself, have an adverse impact on Danebritt’s business. Danebritt is required to tender for new business, it “must declare” any conviction at the pre-qualification stage and doing so “would likely disqualify” Danebritt from winning certain tenders as “certain clients have strict requirements in this respect”. Further, a WHS conviction “can impact” the ability to qualify for a CM3 certification, which would in turn impact its capacity to qualify for and win further business.

  3. Cross-examination of Mr Casablanca about those claims revealed that while a WHS Act conviction was a relevant consideration and a required field in the CM3 database, it was not a matter that would automatically disqualify Danebritt from winning a tender. That evidence suggests that such a conviction would not in fact impede Danebritt from achieving a CM3 qualification necessary to tender for so many of the shopping centre projects which are a significant proportion of its business. Further, it was also conceded that not every tender required Danebritt to declare any prior convictions. Therefore, while I accept that a conviction may well impact Danebritt’s reputation in the industry, I do not accept that it will prevent it from getting a CM3 qualification and thereby prevent it from gaining work from what is presently 60% to 70% of its client base.

Objective seriousness

  1. 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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

  2. This task requires the Court to consider where the conduct of Danebritt falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):

“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.”

  1. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

  2. 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].

  3. 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) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively.

  4. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:

“[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.”

  1. 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 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.”

  1. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

  1. The prosecutor submitted that this is an objectively serious offence having regard to the weight and dimensions of the cabinet, the obvious risk of it falling and the equally obvious risk of harm if it did. Danebritt was aware of the need to ensure the structural integrity of the cabinet. It was provided architectural drawings for the fit out that included an admonition that it was responsible for this. Using the L-brackets supplied was a simple and obvious measure. Further, when Mr Maestracci asked for further instructions, he was given a diagram relating to another cabinet. The fact that this was not a typical installation undertaken by Danebritt should have resulted in extra care being taken to ensure the structural integrity of the cabinet. In addition, the measures implemented after the incident were neither complicated nor expensive.

  2. At sentence, the prosecutor contended that if I did not take into account the weight of the cabinet due to that being a matter which was consistent with an offence under s 32 of the WHS Act, then the removal of that fact (together with anything else that might be consistent with a s 32 offence) would leave this offence at the top of the range for a s 33 offence.

  3. Danebritt submitted that the objective seriousness of the offence was at the lower end of matters that come before the Court because of its narrow scope and the safety systems which it had in place at the time of the incident. Danebritt also contended that Mr Casablanca’s evidence demonstrates a reasonable, educated and informed belief that the controls the company had in place were sufficient. The incident ought rightly to be characterised as a one-off failure in an otherwise comprehensive and effective safety system.

  4. The measures which Danebritt accepts that it could have taken to prevent the incident which occurred are set out at [6] above. While there are two measures pleaded, the essence of both of them is making use of all of the L-brackets supplied with the cabinet for the purposes of installation. Of itself, that is a rudimentary step that could have been taken without difficulty. I accept that some delay would have been occasioned to the project as a result of waiting for English instructions to be procured from the supplier.

  5. It is self-evident that the intention was for most, if not all of the L-brackets supplied with the cabinet to be used to install it. The provision of instructions for a different cabinet, presumably to avoid any delay to the project, was not the way to resolve Mr Maestracci’s self-identified need for assistance in order to proceed with the installation. That fact, together with some of the other deficiencies in Danebritt’s practices, addressed above in the context of the reliability of Mr Casablanca’s evidence, is such that I cannot find, even on the balance of probabilities, that Danebritt had a robust safety system in place at the time of the incident. Nor do I find that it’s attitude to safety was a casual one. I am simply unable to make any finding in that regard.

  6. The instability of the installed cabinet when such a small proportion of the supplied L-brackets were used (at best four out of at least 15) was entirely foreseeable. So much is demonstrated by Mr Maestracci’s attempt to test the stability of the installation by pulling down on it, a process which exposed him to the risk of the cabinet collapsing and which did not account for the additional weight that the cabinet would need to hold once it was filled. Given the gross underutilisation of the supplied L-brackets, there was at least a reasonable possibility that the risk would materialise.

  7. I have already indicated that consideration of the weight of the cabinet would cause me to fall into De Simoni error and that I have no regard to it. The prosecutor submitted that the better course, for the purpose of assessing objective seriousness was to take into account that the risk not guarded against was the risk involving a 600kg object being secured to a wall without considering a risk to an individual. However, the pleaded risk was a risk to persons being struck by the cabinet. I am required to assess the objective seriousness of the offence in the context of that pleaded risk. Accordingly, I cannot take into account the weight of the cabinet.

  8. I accept that the incident was a one-off event in the context of a company that has operated without conviction for over 20 years. That does not, of itself, place it at the low end of the range: SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165 at [53]–[54]. As submitted by the prosecutor, the unique nature of the installation job was such that it should have been afforded greater attention than a more routine installation conducted by Danebritt. The response to Mr Maestracci’s request for better instructions is also a significant problem for Danebritt. Mr Maestracci should have been prevented from installing the cabinet until proper instructions were able to be obtained. Having said that, I accept that if, as he says, Mr Maestracci had been through the OPSM Plans, he would have seen that the cabinet was required to be affixed to both the ceiling and the floor. Accordingly, while he may have told the regulator that he had not been told how to affix the cabinet, I do not accept that to be the case. Further, I accept that the scope of the measures which Danebritt accepted by its plea that it should have implemented was very narrow.

  9. Taking the above matters into account in the manner indicated, I find that the objective seriousness of the offence falls within the mid-range.

Aggravating factors

  1. There are no aggravating factors as contemplated by s 21A(2) CSP Act. The prosecutor did not contend otherwise.

Mitigating factors

  1. Danebritt has no prior convictions: s 21A(3)(e) CSP Act.

  2. Danebritt is otherwise of good character: s 21A(3)(f) CSP Act. This is demonstrated by its response to the incident, including the development of an Inspection Test Plan and the engagement of WHS consultant Pillar Consulting to provide additional expertise as required. In addition, Danebritt has a history of supporting local charities and community activities as set out above at [39].

  3. The “one-off” nature of the incident, its impact on Danebritt’s management and the measures that Danebritt has put in place since the incident enable me to find that it is unlikely to reoffend (s 21A(3)(g) CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) CSP Act).

  4. Danebritt has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions. I am prepared to accept that evidence on balance, notwithstanding some of the other problems with Mr Casablanca’s evidence to which I have referred.

  5. Danebritt entered a plea of guilty on 16 June 2025 to a charge particularised in an Amended Summons filed in Court on that date. The original summons, which charged the same offence in the alternative (albeit particularised differently) was dated 19 November 2024 and first returnable on 10 March 2025. The plea of guilty was entered at the third mention of proceedings. Danebritt is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. The prosecutor did not take issue with Danebritt’s submission that it should be afforded a discount on sentence of 25% in recognition of its early guilty plea. I accept that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

  6. Danebritt submits that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it: s 21A(3)(m) CSP Act. The only evidence to that effect is a bare statement from Mr Casablanca that Danebritt assisted SafeWork NSW with its investigation. I have already addressed the difficulties that I have with some aspects of Mr Casablanca’s evidence. Further, the absence of any detail about such assistance is such that, even if I were to accept Mr Casablanca’s evidence on this issue, I could not find on the balance of probabilities anything more than bare compliance with a regulatory notice or notices, the absence of which would render the offender liable to prosecution. As stated in SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4 at [89], that is not a matter that would ordinarily attract a discount on sentence.

Deterrence

  1. The penalty imposed in relation to this offence must provide for general deterrence. There is nothing in the circumstances of either the offence or Danebritt that would permit a finding that Danebritt is not a suitable vehicle for general deterrence or that the role of general deterrence in the sentencing exercise should be minimal.

  2. There are two matters which would support a finding that specific deterrence is a matter of reduced weight in this sentencing exercise. The first is Danebritt’s absence of prior convictions after almost 20 years. As submitted by Danebritt, that is not achieved without meaningful attention being given to safety matters. The other is Danebritt’s response to the incident, which provides me with confidence that a similar incident will not occur in the future. As contended by Danebritt, the Court may place less weight on specific deterrence if it is satisfied that the risk of reoffending is low and may form such a view as a result of the rehabilitation of the offender: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [183].

  3. Against that are the safety concerns which have emerged from the evidence. These include the fact that induction forms were being filled out by workers in the absence of any meaningful instruction and that workers were permitted to work on site, potentially for multiple days, prior to the forms being completed. On balance, and accepting that this process will have operated as a salutary lesson, I am prepared to find that specific deterrence, while still relevant, is a matter of reduced significance in the sentencing process.

Section 10 application

  1. Danebritt seeks dismissal of the charge pursuant to s 10(1)(a) of the CSP Act. In support of that submission, it points to the consideration given to the competency of Mr Maestracci to perform work and the discussion of that matter with him beforehand, as well as the availability of Mr Schlatter to monitor Mr Maestracci’s work and to assist if required. It also points to the fact that Mr Maestracci had been through the architectural drawings with Mr Schlatter and that his failure to reinforce the plasterboard wall prior to installation of the cabinet was a failure to adhere to Danebritt’s SWMS and the architectural plans. Further, it must have been plain to Mr Maestracci that he had used only a very small number of the L-brackets supplied to him for that purpose, and his concern about the stability of the cabinet was demonstrated by his attempt to satisfy himself of that matter on 19 November 2022 by pulling on it, at which time it remained in place.

  2. Danebritt also relies on the evidence of Mr Casablanca, which I have addressed above, that a conviction would have an adverse impact on Danebritt’s business due to the tendering process to which it is subject. It nonetheless acknowledged that the dismissal of charges under s 10 in the WHS context is extremely rare and a matter of discretion. It pointed to Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 133 (Wong) as an example of where such an order has been made.

  3. The prosecutor submitted that the dismissal of the matter pursuant to s 10(1)(a) would amount to appealable error. In particular, it contended that Danebritt attempts to distinguish the conduct of Mr Maestracci from that of the body corporate, when, pursuant to s 244A WHS Act, they are the same.

  4. I agree that this is not an appropriate matter for disposal pursuant to s 10(1)(a) of the CSP Act. There is established authority that s 10(1)(a) (and its predecessor s 556A of the Crimes Act 1900 (NSW)) should only be applied in the WHS context in exceptional circumstances. In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142, this Court considered long standing authority including Wong and Schultz v Tamworth City Council (1995) 58 IR 221 before concluding as follows at [26]:

“Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission...”

  1. In determining this question, I am required to have regard to the matters set out at s 10(3) CSP Act, where they are relevant. I have had regard to Danebritt’s early plea of guilty, and lack of criminal antecedents. The offence was not and not asserted to be trivial.

  2. The defendant’s reliance upon Wong is misplaced. The culpability for the incident in that matter was largely attributed to uncharged entities over which the offender had no control and occurred in the context of an offender who had demonstrated a concern for safety over many years, including in relation to prevention of the incident which occurred. That is not this case. Here, the moral culpability of Danebritt is significant in circumstances where Mr Maestracci asked for proper installation instructions and was instead at least permitted, if not required, to work with a single page diagram relating to a different cabinet. Further, given my concerns about the reliability of Mr Casablanca’s evidence, I do not accept his uncorroborated evidence about the extent of the impact of a conviction on Danebritt’s ability to secure work into the future.

Capacity to pay a fine

  1. Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of Danebritt before imposing a fine. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance. At just over 50 employees, Danebritt is not a large company, but nor is it very small. I have regard to such matters to the extent that I am able in circumstances where there was no evidence before the Court concerning the financial position of Danebritt and no submission made concerning Danebritt’s capacity to pay a fine.

Penalty

  1. The appropriate fine is $120,000, which will be reduced by 25% to reflect the plea of guilty.

  2. I make the following orders:

  1. I convict The Danebritt Group Pty Ltd of the offence as charged.

  2. I impose a fine of $90,000.

  3. The Danebritt Group Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

  4. Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 14 November 2025

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Barton v R [2009] NSWCCA 285
Baumer v R [1988] HCA 67
Baumer v R [1988] HCA 67