Citation: SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312
Court: District Court of NSW
Date: 3 November 2017
Judge(s): Judge D. Russell
Background
A road-sealing company, CRS NSW Pty Ltd (trading as Complete Road Seal), and its director were sentenced following guilty pleas to work health and safety offences arising from an explosion at a residential worksite in Wagga Wagga on 1 July 2015. The company's vehicle, a Paveline Autopatch bitumen road-sealing truck, became blocked when bitumen emulsion solidified in cold weather. The director decided to use a handheld LPG open-flame gas torch to heat components of the vehicle while the truck was operating.
The torch was applied near kerosene pipelines and pressurised air lines. The pressurised lines ruptured, causing kerosene and compressed air to contact the open flame, triggering an explosion and fireball. A worker from a neighbouring property, Mr Stuart Pollard, who had briefly approached to speak with the director, was engulfed by the fireball as he walked away. He was approximately five metres from the rear of the vehicle at the time.
Mr Pollard sustained burns to 35% of his body, spent weeks in intensive care at Concord Hospital, underwent surgery including skin grafting, and was placed in an induced coma for about two weeks. He was left with permanent scarring, contractures limiting movement in his legs, knees, and hands, and had not returned to full-time work by the time of sentencing. The company faced a maximum fine of $1,500,000 and the director faced a maximum of $300,000.
Legal Issues
- Whether the company failed its health and safety duty under s 19 of the Work Health and Safety Act 2011, exposing a person to a risk of death or serious injury (s 32)
- Whether the director, as an officer of the company, failed to exercise due diligence to ensure the company complied with its duty under s 19(2) (s 27), thereby exposing a person to a risk of death or serious injury (s 32)
- The appropriate penalties, including the objective seriousness of the offences, relevant aggravating and mitigating factors, and the appropriate discount for the guilty pleas
- Whether the fines warranted reduction on the basis of capacity to pay
- Costs orders
Decision
Both defendants pleaded guilty, and the court proceeded on the basis of an agreed statement of facts. Judge Russell assessed the objective seriousness of both offences as falling in the lower to mid range. The key risk, using an open flame in close proximity to pressurised flammable liquids and lines on an operating vehicle, was foreseeable and preventable, and the consequences for Mr Pollard were severe. The court noted that the explosion was not inevitable but resulted from a poor decision made in the field.
In mitigation, the court accepted that the company and director had no prior convictions, cooperated fully with SafeWork NSW, provided documents promptly, and expressed genuine remorse and contrition. The director himself sustained minor burns in the explosion and returned to work. The court also accepted that the defendants had taken steps after the incident to improve safety practices.
On the guilty plea discount, the court declined to apply the maximum 25% discount, as the defendants had originally entered not-guilty pleas and only changed their pleas on 28 September 2017. A discount of 20% was applied. The court noted the plea did spare Mr Pollard from the burden of giving evidence, and that cooperation with investigators was a further mitigating factor. No submission was ultimately made that the fines should be reduced for capacity to pay, though the court confirmed that capacity is relevant but not decisive in such assessments.
General and specific deterrence were treated as relevant sentencing considerations. The court ordered that 50% of each fine be paid to the prosecutor (SafeWork NSW) pursuant to s 122(2) of the Fines Act 1996, and both defendants were ordered to pay the prosecutor's costs.
Orders Made
CRS NSW Pty Ltd:
- Convicted of the offence
- Fined $160,000 (base fine of $200,000, reduced by 20% for guilty plea)
- 50% of the fine to be paid to the prosecutor
- Ordered to pay the prosecutor's costs as agreed or assessed
Jay McGeachie Jenkins:
- Convicted of the offence
- Fined $40,000 (base fine of $50,000, reduced by 20% for guilty plea)
- 50% of the fine to be paid to the prosecutor
- Ordered to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- Both the corporate entity and its individual director were convicted and fined under the Work Health and Safety Act 2011 for the same incident, reflecting the distinct duties imposed on companies (s 19) and their officers (s 27) respectively.
- A 20% guilty plea discount applied where defendants initially entered not-guilty pleas and changed them only shortly before trial, rather than the higher 25% discount available for early pleas.
- Objective seriousness was assessed as falling in the lower to mid range despite the severity of the victim's injuries, reflecting that courts assess the circumstances of the breach itself, not only the outcome.
- Under s 6 of the Fines Act 1996, an offender's capacity to pay is a relevant but not decisive consideration: a substantial fine may still be warranted by the seriousness of the offence and the need for general deterrence.
- Cooperation with the regulator, absence of prior convictions, genuine remorse, and steps taken to improve safety after an incident can all operate as mitigating factors in WHS sentencing, though they do not override the need for deterrence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- Corporations Act 2001 (Cth), s 9
Cases:
- Veen v R (No. 2) (1998) 164 CLR
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338