Citation: SafeWork NSW v Meixing Jiang [2018] NSWDC 400
Court: District Court of New South Wales
Date: 17 December 2018
Judge(s): Russell SC DCJ
Background
The defendant was the sole director of a brickwork subcontracting company operating at a multi-storey residential development site in Belmore, NSW. He had a statutory duty as an officer under the Work Health and Safety Act 2011 to exercise due diligence in ensuring his company complied with its work health and safety obligations. Two bricklayers employed by his company, both of whom had very limited English comprehension, were directed to perform brickwork tasks on basement level one of the site.
While completing that task, one worker stepped onto a temporary metal sheet covering an open ventilation shaft. The sheet gave way, and the worker fell the full depth of the shaft to basement level three. He was trapped for approximately two hours before emergency crews could reach him. He sustained severe spinal and foot injuries requiring multiple surgeries and approximately four months of hospitalisation.
The prosecution arose because neither worker had received adequate site induction, no risk assessment or Safe Work Method Statement had been prepared, no warnings about the open shaft had been communicated to the workers, and the hazards had not been identified or addressed before the task was assigned.
Legal Issues
- Whether the defendant, as an officer of the company, failed to exercise due diligence to ensure the company complied with its primary duty under s 19(1) of the Work Health and Safety Act 2011, contrary to ss 27 and 32 of that Act
- The appropriate penalty, having regard to the objective seriousness of the offence, mitigating and aggravating factors, general and specific deterrence, and the defendant's plea of guilty
- The application of the totality principle and the discount for the guilty plea
- The appropriate order for prosecution costs
Decision
The defendant pleaded guilty. The court accepted the agreed statement of facts and proceeded to sentence on that basis. The maximum penalty for the offence was a fine of $300,000, reflecting the legislature's recognition of the serious consequences that can flow from failures to observe work health and safety duties.
The court assessed the objective seriousness of the offence as significant. The defendant assigned workers to a task in close proximity to an uncovered and inadequately barricaded ventilation shaft without conducting any risk assessment, without ensuring proper site induction had occurred, and without communicating known hazards to workers who did not speak English as their first language. The defendant's own first language was Mandarin, and he gave instructions in limited English to workers whose languages were Farsi and Hazaragi. The court identified the failure to communicate safety information across language barriers as a material aggravating feature.
The court identified several mitigating factors, including the guilty plea, which attracted a 25% discount, and relevant remorse and contrition. The court applied established sentencing principles, including the totality principle and the principle that general deterrence carries particular weight in work health and safety prosecutions. The victim's impact statement, describing permanent and debilitating injuries and the destruction of his working life, was taken into account as reflecting harm done to the community under s 28(4) of the Crimes (Sentencing Procedure) Act 1999.
Before applying the guilty plea discount, the court assessed the appropriate fine at $30,000. After the 25% reduction, the fine was set at $22,500. Fifty per cent of the fine was ordered to be paid to the prosecutor under the Fines Act 1996, and prosecution costs of $15,000 were also ordered.
Orders Made
- The defendant was convicted of the offence
- A fine of $22,500 was imposed (reflecting a 25% discount for the guilty plea from a base fine of $30,000)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor
- The defendant was ordered to pay the prosecutor's agreed costs of $15,000
Key Takeaways
- The District Court confirmed that an officer's failure to exercise due diligence under s 27 of the Work Health and Safety Act 2011 is a serious offence, and that directing workers to perform tasks near unguarded fall hazards without any risk assessment constitutes a significant failure at the objective level.
- Where workers have limited English comprehension, the failure to communicate hazards in a language they understand is a material consideration in assessing the gravity of a work health and safety offence.
- A guilty plea attracted a 25% reduction from the base fine, consistent with the sentencing discount principles established in cases such as R v Thomson & Houlton and applied in the work health and safety context.
- General deterrence carries particular weight in WHS prosecutions; the sentencing court applied this principle to reflect the need for those directing workers to actively implement safety systems, not merely assume others have done so.
- Victim impact evidence of permanent, life-altering physical injury and ongoing financial and personal hardship was treated as relevant to punishment, as harm to the individual worker reflects broader harm to the community under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27, 32
- Work Health and Safety Regulation 2011 (NSW), cls 34, 35, 36, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- R v McNaughton (2006) 66 NSWLR 566
- Veen v R (No. 2) (1998) 164 CLR
- Baumer v R (1998) 166 CLR 51
- Jahandideh v R [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432