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District Court 24 November 2017

SafeWork NSW v Travis Brown

[2017] NSWDC 337

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Travis Brown [2017] NSWDC 337
Court: District Court of New South Wales
Date: 24 November 2017
Judge: Judge D. Russell

Background

The offender operated a steel fabrication and houseboat manufacturing business through a family trust at a workshop in Moama, New South Wales. An employee, a qualified steel fabricator with no formal roofing qualifications, was directed by an informal supervisor to complete roof sheeting work on a new extension to the workshop. The offender was absent from the site that day, having left to attend a funeral.

The employee used a scissor lift to access the roof from inside the structure. While attempting to screw an iron roofing sheet into place, the sheet slipped and exposed an opening. The employee fell approximately 2.8 metres through the roof onto a compressor and then a further metre onto a concrete floor. He sustained five fractured ribs, a punctured lung, and fractures to two vertebrae, and was airlifted to a Melbourne hospital where he remained as an inpatient for 14 days.

The offender pleaded guilty to two offences: failing to comply with his health and safety duty as a person conducting a business or undertaking, thereby exposing the employee to a risk of death or serious injury; and failing to notify SafeWork NSW of the incident immediately after becoming aware of it. The regulator was not notified until approximately three months after the incident.

  • What constitutes an appropriate fine for a Category 2 offence under s 32 of the Work Health and Safety Act 2011, having regard to the objective seriousness of the conduct and relevant mitigating factors?
  • What discount, if any, should apply to reflect the offender's early plea of guilty?
  • What is the appropriate penalty for the failure to notify the regulator of a notifiable incident under s 38(1) of the Act?
  • How should the totality principle apply across two separate offences?
  • What costs order was appropriate?

Decision

The court assessed the objective seriousness of the primary offence as moderate to serious. The offender had no documented systems for working at heights, conducted no risk assessments, held no toolbox meetings, and provided no fall prevention equipment to workers. He was also aware, the day before the incident, that another worker had performed roofing work without any fall protection. The court found these omissions reflected a significant and systemic failure to meet basic obligations under the WHS Regulation.

The court identified several mitigating factors: the offender had no prior convictions, cooperated with SafeWork NSW's investigation, pleaded guilty at an early stage, expressed genuine remorse, and had since taken steps to improve safety systems. The court also noted that he was a small business operator with limited financial resources, though it declined to reduce the fine on economic grounds given the available evidence did not clearly support such a reduction.

On the notification offence, the court found the failure to notify the regulator promptly was a serious omission but treated it as less grave than the primary offence, and imposed a modest fine. Both fines were reduced by 25 per cent to reflect the early guilty pleas.

The court took into account the Victim Impact Statement, which described the lasting physical, financial, and emotional harm suffered by the employee and his family since the incident, noting this harm as an aspect of harm done to the community under s 28(4) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Offender convicted of the offence under s 32 of the Work Health and Safety Act 2011 (failure to comply with health and safety duty).
  • Fine of $60,000 imposed for that offence (reduced from $80,000 by 25% for the guilty plea).
  • 50% of that fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
  • Offender convicted of the offence under s 38(1) of the Work Health and Safety Act 2011 (failure to notify the regulator).
  • Fine of $1,500 imposed for that offence (reduced from $2,000 by 25% for the guilty plea).
  • 50% of that fine directed to be paid to the prosecutor.
  • Offender ordered to pay agreed prosecution costs of $21,455.88.

Key Takeaways

  • The District Court confirmed that an absence of any documented systems for working at heights, combined with knowledge that workers were performing elevated work without fall protection, will significantly elevate the objective seriousness of a WHS offence, even for a small business operator.
  • Under the Work Health and Safety Act 2011, the obligation to manage fall risks applies where falls are reasonably likely to cause injury; that obligation extends to ensuring fall prevention devices, work positioning systems, or fall arrest systems are provided and maintained.
  • A 25 per cent discount on the applicable fine was applied in recognition of an early guilty plea, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999.
  • Failing to notify the regulator of a notifiable incident promptly is a standalone offence attracting a separate penalty, regardless of whether the offender believed notification had occurred through another channel such as an insurer.
  • Victim Impact Statements from injured workers are a relevant consideration at sentencing in WHS prosecutions, with harm to the victim treated as an aspect of harm done to the community under s 28(4) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 35, 36, 38(1)
- Work Health and Safety Regulation 2011 (NSW), cll 78(1), 79, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4)
- Fines Act 1996 (NSW), s 122(2)

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