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District Court 16 April 2018

Safe Work NSW v Wholesale Joinery Pty Limited

[2018] NSWDC 91

Other
CRIMINAL LAW WORK HEALTH AND SAFETY OFFENCE PLEA OF GUILTY STATEMENT OF AGREED FACTS APPROPRIATE PENALTY APPLICABLE DISCOUNT FOR PLEA OF GUILTY

Citation: Safe Work NSW v Wholesale Joinery Pty Limited [2018] NSWDC 91
Court: District Court of New South Wales
Date: 16 April 2018
Judge: Judge AC Scotting

Background

The defendant, a kitchen cabinet manufacturer operating from premises at Somersby on the Central Coast, decided in early 2016 to disassemble and remove a disused cool room at its factory. After receiving a contractor's quote of over $35,000, the company concluded the work could be done by its own maintenance staff. No Safe Work Method Statement (SWMS) was prepared and no formal risk assessment was documented before the work commenced.

On 13 April 2016, a maintenance fitter with 35 years' experience was working on top of the cool room's suspended ceiling panels, cutting air conditioning ducting. He was not wearing fall arrest equipment. While attempting to attract the attention of a colleague operating a forklift, he walked toward an unprotected edge. A ceiling panel gave way and he fell to the factory floor. He was airlifted to hospital with fractures to his right wrist, left elbow, and left kneecap.

The regulator, Safe Work NSW, prosecuted the company for failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury. The company pleaded guilty. The sentencing hearing proceeded on agreed facts.

  • What was the appropriate fine, having regard to the objective seriousness of the offence and the maximum penalty of $1.5 million?
  • What weight should be given to mitigating factors, including the guilty plea, the offender's prior good character, remorse, and post-incident remediation?
  • What discount should apply to reflect the utilitarian value of the guilty plea, and when was that plea entered?

Decision

Judge Scotting found that the offence was of moderate objective seriousness. The company failed to prepare an SWMS for high-risk construction work involving a risk of a fall of more than two metres, which the Work Health and Safety Regulation 2011 expressly required. Relevant guidance materials from SafeWork Australia and a Code of Practice from SafeWork NSW were available and not followed. The risk was foreseeable and the consequences serious.

Several significant mitigating factors were accepted. The company had no prior convictions, had an established WHS policy, and the maintenance team had a practice of identifying risks and using equipment such as scissor lifts, even if that practice fell short of what was required. The company cooperated with the investigation, expressed genuine remorse through its director's affidavit, and took substantial steps to improve its safety systems after the incident, including engaging a structural engineer and preparing a proper SWMS before completing the remaining work.

Judge Scotting also took into account that the injured worker himself appeared in court and was supportive of his employer, a matter addressed through the victim impact statement. The company was described as an exemplary corporate citizen, with substantial charitable contributions and a significant local employment role.

A 25% discount was applied for the guilty plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski, which place primary weight on the timing of the plea, with an earlier plea attracting a greater discount. The court fixed the pre-discount fine at $160,000, yielding a final penalty of $120,000.

Orders Made

  • The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
  • A fine of $120,000 was imposed (reduced from $160,000 by a 25% guilty plea discount).
  • Pursuant to section 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 costs in the agreed sum of $25,000.

Key Takeaways

  • The District Court treated the failure to prepare a SWMS for high-risk work involving a fall risk of more than two metres as a significant, though not the most serious, example of its kind, and assessed the fine accordingly against a $1.5 million maximum.
  • Under the Work Health and Safety Act 2011, a duty-holder's failure to implement a required SWMS for high-risk construction work can constitute a criminal offence even where the employer has broader WHS policies in place and experienced staff on the ground.
  • A 25% discount for a guilty plea was applied in accordance with the principle that the timing of the plea is the primary consideration, with earlier pleas attracting greater discounts.
  • Post-incident remediation, including engaging engineers, preparing proper documentation, and improving safety systems, carried genuine mitigating weight alongside evidence of good character and remorse.
  • Cooperation with regulators during investigation is a recognised statutory mitigating factor under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 in WHS prosecutions.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cl 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412