Citation: WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2016] NSWDC 16
Court: District Court of NSW
Date: 24 February 2016
Judge: Kearns DCJ
Background
Both defendants, a bricklaying subcontractor company and its individual officer, were convicted on 16 December 2015 of offences under the Work Health and Safety Act 2011. The convictions arose from a workplace incident in which a self-employed worker, engaged by the subcontractor to perform work on a construction site, was exposed to the risk of electrocution while handling metal objects near live overhead wires.
The incident involved multiple parties. A scaffolding company and a head contractor had already been convicted and sentenced separately. The subcontractor company was engaged by the head contractor to carry out a specific task on site, and the individual officer was a director responsible for the company's operations.
This judgment deals only with the sentencing of the two remaining defendants following their convictions at the earlier hearing.
Legal Issues
- What was the appropriate penalty for the subcontractor company, having regard to the gravity of the offence, foreseeability of risk, and available preventive measures?
- Whether the parity principle (consistency in sentencing between co-defendants) applied as between the subcontractor and the head contractor, and to what degree?
- Whether general deterrence remained a relevant sentencing consideration, given that other parties to the same incident had already been sentenced?
- Whether an order under s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 or s 239 of the Work Health and Safety Act 2011 should be made in respect of the individual officer, in the absence of proceedings against the corresponding officers of other companies?
- Whether remorse and contrition were established as mitigating factors?
Decision
Gravity of the offence
Kearns DCJ found the offence was serious. The risk of injury from handling metal objects near live wires was readily foreseeable, as were the potential consequences including electric shock or electrocution. Measures to avoid the risk were readily available and were not taken.
Parity with the head contractor
The court rejected the submission that the subcontractor's responsibility was a mere fraction of the head contractor's. While the head contractor had broader control over the site and equipment, the subcontractor had a positive statutory duty to ensure the health and safety of the worker it engaged. The court found it actively participated in the dangerous task by supplying materials to the worker while he was exposed to risk. The parity principle provided guidance on sentencing, but the subcontractor's lower level of control was only one factor in a more complex assessment.
General deterrence
The court firmly rejected the argument that general deterrence was unnecessary because other co-defendants had already been sentenced. Kearns DCJ characterised the submission as akin to "Russian roulette," which would create incentives for defendants to jockey for later positions in court proceedings to avoid general deterrence being applied to them. General deterrence remained a live consideration, as did specific deterrence, given that the defendants continued to work and had not demonstrated what steps they had taken to prevent a recurrence.
Individual officer and parity
The submission that the individual officer should escape conviction or penalty because the officers of the other companies had not been prosecuted was rejected. The court found no basis for treating the non-prosecution of individuals in other entities as a reason to withhold conviction from someone who had been found guilty. The suggestion that WorkCover had used the threat of conviction for an improper purpose was rejected for lack of evidence. Equally, the claim of remorse and contrition was rejected, as no evidence was placed before the court to substantiate it. The offer to plead guilty, described without any supporting documentation, did not constitute evidence of genuine contrition.
Orders Made
- E & T Bricklaying Pty Ltd is fined $80,000, with a moiety (half) payable to the prosecutor.
- The individual officer, Mr Kose, is fined $10,000, with a moiety payable to the prosecutor.
- Both defendants are ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that the parity principle applies to sentencing under the Work Health and Safety Act 2011 where multiple defendants are involved in the same incident, but does not require equal penalties where levels of culpability differ materially.
- A subcontractor's lack of overall site control does not, of itself, reduce its statutory duty of care to negligible levels. Where a subcontractor actively engaged a worker and participated in a dangerous task, its culpability extended well beyond a mere failure to ask questions.
- General deterrence remains a valid sentencing consideration for each defendant in a multi-party workplace safety prosecution, regardless of whether earlier defendants have already been sentenced on the same facts.
- Where an individual officer of one company was prosecuted but officers of other companies involved in the same incident were not, the absence of proceedings against those others does not entitle the prosecuted individual to avoid conviction or penalty.
- Remorse and contrition are matters of evidence. An unsubstantiated assertion, or an offer to plead guilty described only through absent correspondence, does not satisfy a court that genuine contrition exists.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1)(a), 27, 32, 239
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A(1), 21A
Cases:
- WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369 (conviction judgment)
- WorkCover Authority of New South Wales v JMW Developments Pty Limited [2015] NSWDC 259