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127
Court of Criminal Appeal 26 November 2018

Unity Pty Ltd v SafeWork NSW

[2018] NSWCCA 266

Other
CRIME CONVICTION APPEAL INDUSTRIAL SAFETY, HEALTH AND WELFARE FINDING NOT CHALLENGED ON APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE AGGRAVATING FACTORS

Citation: Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 26 November 2018
Judges: Beazley P, Basten JA, Wilson J

Background

In March 2014, a worker named Mr Gumbleton was assisting with the installation of a fire sprinkler system at an aged care centre in Forster, NSW. While working in a roof space, he leaned against an air conditioning duct beneath which ran an insulated electrical cable. The cable was resting on the sharp point of a self-tapping screw, which punctured the insulation under pressure and caused Mr Gumbleton to suffer a severe electric shock. His injuries included a hypoxic brain injury, burns, and cardiac arrest.

SafeWork NSW charged three contracting parties under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to ensure the health and safety of workers. The principal contractor (Unity), the fire installation contractor (Activate), and the plumbing contractor (Hanna, which employed Mr Gumbleton) were each prosecuted. Hanna pleaded guilty and was fined $4,250. Unity and Activate were convicted after a trial and each fined $10,000.

Two appeals followed. Unity appealed its conviction, and the Attorney General appealed the adequacy of the sentences imposed on all three defendants and the limited costs orders made against them.

  • Whether Unity was convicted of an offence different from that particularised in the charge (i.e. whether the trial judge impermissibly modified the pleaded risk)
  • Whether the safety measure identified in the prosecution's particulars was reasonably practicable
  • Whether there was a sufficient causal link between the defendants' conduct and the pleaded risk
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences as low
  • Whether the worker's actual injuries should have been treated as an aggravating factor in sentencing, even though those injuries were not the manifestation of the risk pleaded by the prosecution
  • Whether "sympathy" expressed by a defendant is sufficient to establish remorse as a mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the prosecution's delay of more than eight months in lodging its sentence appeals should engage the court's residual discretion not to intervene

Decision

Conviction appeal (Unity)

The Court of Criminal Appeal dismissed Unity's conviction appeal on all four grounds. The trial judge had not impermissibly modified the pleaded risk; rather, the judge appropriately found that the particulars, properly read, encompassed the conduct in question. The court found that the safety measure identified by the prosecution was reasonably practicable in the circumstances, and that there was a sufficient causal connection between the defendants' failure and the relevant risk.

Sentence appeals: objective seriousness and the worker's injuries

The prosecution's sentence appeals against all three defendants were also dismissed. A notable feature of the case was that Mr Gumbleton's actual injuries arose from the cable being punctured by a screw point, not from the risk of wires being severed by contact with sharp furring channel edges, which was the risk the prosecution had specifically pleaded. The court accepted that this finding, which was not challenged on appeal, had implications for how the worker's injuries could be used in sentencing. The court declined to find that the sentencing judge had erred in rating the objective seriousness of the offences as low, or in the treatment of the worker's injuries as an aggravating factor.

Remorse

In relation to Activate, the court examined whether mere sympathy expressed by a defendant could satisfy the requirement for remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that sympathy without genuine remorse does not meet that statutory threshold. However, this error in the sentencing judge's approach did not, in the circumstances, render the sentences manifestly inadequate.

Delay and residual discretion

The prosecution's appeals had been lodged more than eight months after the orders were entered. The delay was attributed to internal bureaucratic processes within SafeWork NSW. The court considered whether this delay should enliven the residual discretion to decline intervention, noting that even where the defendant is a corporate entity rather than a natural person, delay remains a relevant consideration. Ultimately, the delay issue did not determine the outcome because the substantive grounds of appeal failed.

Orders Made

  • Unity (NSW) Pty Ltd v SafeWork NSW: appeal dismissed
  • Attorney General (NSW) v Unity (NSW) Pty Ltd: appeal dismissed
  • Attorney General (NSW) v Activate Fire Australia Pty Ltd: appeal dismissed
  • Attorney General (NSW) v Hanna Plumbing Pty Ltd: appeal dismissed

Key Takeaways

  • A conviction under the Work Health and Safety Act 2011 (NSW) will not be set aside merely because the trial judge's articulation of the risk differs in expression from the prosecution's particulars, provided the substance of the pleaded case has been fairly maintained throughout.
  • Where the prosecution pleads a specific risk in its particulars, the actual injuries suffered by the worker may not constitute an aggravating factor in sentencing if those injuries were not the materialisation of that pleaded risk.
  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), sympathy expressed by a defendant toward an injured worker does not, without more, satisfy the mitigating factor of remorse.
  • In dismissing the sentence appeals, the Court of Criminal Appeal affirmed that a finding of low objective seriousness is not necessarily erroneous in WHS prosecutions where the circumstances are circumscribed by how the risk was pleaded and particularised.
  • Prosecution delay in lodging sentence appeals, even where explained by internal administrative processes, remains a live consideration when the court exercises its residual discretion, and that consideration is not removed simply because the respondent defendants are corporations.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 17, 18, 19, 30, 32; Pt 2, Div 5
- Work Health and Safety Regulations 2011 (NSW), cl 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Appeal Act 1912 (NSW), ss 5AE, 5D, 10
- Criminal Procedure Act 1986 (NSW), ss 133, 188, 257B
- Fines Act 1996 (NSW), s 6

Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Director of Public Prosecutions v Lazzam [2016] NSWSC 145
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- 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 Hallocoglu (1992) 29 NSWLR 67
- R v Irvine (2009) 25 VR 75; [2009] VSCA 239
- R v Isaacs (1997) 41 NSWLR 374
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
- SafeWork (NSW) v Activate Fire Pty Ltd [2016] NSWDC 440
- Holmes v RE Spence and Co Pty Ltd (1992) 5 VIR 119