Citation: SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294
Court: District Court of New South Wales
Date: 28 October 2016
Judge: Kearns DCJ
Background
The defendant, a stevedoring company operating at the Port of Newcastle since 1996, was engaged to load large packs of aluminium ingots into the hold of a cargo ship. The work involved stacking heavy "gouchee packs" (each weighing up to 24 tonnes) in tiers within the ship's hold using gantry cranes, with stevedores working inside the hold to guide and position the cargo.
On 23 September 2012, the deceased worker, a team leader employed by the defendant, climbed down the open face of a stack of ingot packs rather than using one of the portable ladders the defendant had provided. As he descended, multiple stacks of ingots toppled in quick succession, crushing and fatally injuring him.
The defendant was charged with a breach of section 32 of the Work Health and Safety Act 2011, which creates a criminal offence for failing to comply with a primary duty of care under section 19(1). The defendant entered a guilty plea, and the matter proceeded to sentencing.
Legal Issues
- Where on the scale of objective seriousness did this offence fall, given the systems of work the defendant had in place before the incident?
- What role should the death of the worker play as an aggravating factor in sentencing?
- What weight should be given to subjective factors, including the defendant's prior record, remorse, and post-incident response?
- Whether prosecution costs payable by the defendant could be taken into account in determining the appropriate fine.
- What discount applied for the early guilty plea?
Decision
Kearns DCJ placed the offence at the top end of the low culpability range. The court acknowledged that the defendant had extensive safety systems in place before the incident, including documented hazard identification and risk assessment processes that specifically identified the risk of ingot packs toppling. However, the system did not mandate the use of ladders that had been provided: stevedores were given ladders but were not required to use them. The court also noted that sling straps and ratcheting of packs had not been undertaken at the relevant time.
The death of the worker was treated as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, reflecting that the injury was substantial. The court was careful to note this did not amount to punishing the defendant twice, because the fatal outcome is not an element of the WHS offence itself.
On subjective factors, the court gave significant weight to several considerations in the defendant's favour. The defendant had no prior convictions across approximately 50,000 gouchee pack loading operations since 2001. It had demonstrated genuine remorse, cooperated with authorities, made prompt and substantial improvements to its systems after the incident, and was assessed as rehabilitated and unlikely to reoffend. The need for specific deterrence was accordingly reduced, though general deterrence retained importance.
The court accepted that prosecution costs payable by the defendant could be taken into account as a sentencing consideration, following the approach taken in Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171, though it noted this had only minor impact in the circumstances. A 25% discount was applied to the pre-discount penalty of $200,000 for the early guilty plea, producing a final fine of $150,000.
Orders Made
- The defendant is convicted and fined $150,000, with a moiety (half the fine) payable to the prosecutor.
- The defendant is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- The District Court placed this offence at the top end of low culpability, recognising that extensive pre-existing safety systems are a meaningful mitigating consideration even where those systems contained a gap, here the failure to mandate use of provided ladders.
- A worker's death is an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 in WHS sentencing, and this does not constitute double punishment because the fatal outcome is not an element of the offence charged.
- Where a defendant demonstrates a strong safety record over many years, prompt post-incident remediation, and genuine remorse, the need for specific deterrence may be reduced, even in matters involving a fatality.
- Prosecution costs payable by the defendant may be taken into account as part of the overall sentencing exercise, consistent with the approach confirmed in Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171.
- An early guilty plea attracted a 25% reduction from the base penalty of $200,000, resulting in a final fine of $150,000, against a maximum penalty of $1,500,000 reserved for the most serious cases.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
Cases:
- Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171