Citation: Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 26 February 2019
Judges: Beazley P (Fullerton J and McCallum J agreeing in part; Fullerton J dissenting on grounds 2, 3 and 4)
Background
A steel fabrication company (the respondent) was engaged as a subcontractor on a building refurbishment project in Camperdown. Its role included manufacturing and installing steel works, including a skylight structure. On 13 April 2013, a worker contracted to the principal contractor was fatally injured when the approximately one-tonne skylight structure fell on him from a height of about 11 metres.
The respondent had, prior to the incident, discussed exclusion zones with the principal contractor and the crane operator engaged for lifting operations. After being told that crane operations were finished for the day, the respondent's director left the area. Unknown to him, crane operations subsequently recommenced. The skylight structure, which had not been secured, was struck by a crane and fell.
The respondent pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011 (NSW), which prohibits a person with a health and safety duty from failing to comply with that duty in a way that exposes individuals to a risk of death or serious injury. The District Court imposed a fine of $225,000, reflecting a 25 per cent discount for an early guilty plea, and characterised the offending as falling within the mid-range of objective seriousness. The Attorney General appealed, contending the penalty was manifestly inadequate.
Legal Issues
- Whether the primary judge failed to have regard to the maximum penalty of $1,500,000 and the legislative increase in that maximum penalty under the Work Health and Safety Act 2011 (NSW)
- Whether the primary judge erred in characterising the offending as falling within the mid-range of objective seriousness
- Whether the fine of $225,000 was manifestly inadequate
- Whether, even if error were established, the Court should exercise its residual discretion not to intervene, having regard to delay by the Attorney General in prosecuting the appeal
Decision
Ground 1 (Maximum Penalty): Beazley P, with the agreement of Fullerton and McCallum JJ, held that although the primary judge did not explicitly refer to the maximum penalty of $1,500,000 or to the significant increase that represented from the previous legislative scheme, this omission did not establish that his Honour had failed to have regard to those matters. The ground was dismissed.
Ground 2 (Objective Seriousness): Beazley P and McCallum J held that the primary judge's mid-range characterisation was open on the material before him and disclosed no appealable error. Central to this conclusion was the finding that the respondent's director had left the area before the second crane commenced operations, and that DSF bore responsibility primarily for the risk created by leaving the skylights unsecured, not for the subsequent conduct of others. Fullerton J dissented, taking the view that the director's state of knowledge of the continuing crane operations was significantly greater than the primary judge found, making the objective seriousness materially higher.
Ground 3 (Manifest Inadequacy): Beazley P and McCallum J held that the penalty was not manifestly inadequate, noting the respondent's small size, genuine remorse, cooperation with investigators, and immediate implementation of improved safety procedures. Fullerton J dissented, finding the fine unreasonable and plainly unjust in light of what she regarded as a more serious objective characterisation.
Ground 4 (Residual Discretion): On a contingent basis, Beazley P and McCallum J stated that even if the sentencing judge had erred, the Court would have exercised its residual discretion not to intervene. The Attorney General had delayed the appeal by approximately six months beyond the prescribed period without adequate explanation. Fullerton J would have refused to exercise the residual discretion, given the significance of the error she identified and the magnitude of the penalty's inadequacy.
Orders Made
The appeal was dismissed by the majority on all grounds. However, the Orders Section provided in the decision text reflects the outcome in a related matter (the Ceerose appeal heard concurrently). The orders stated in the provided extract are:
- The appeal be allowed
- The monetary penalty imposed in the District Court is quashed
- In substitution, the respondent is ordered to pay a penalty of $450,000
- The remaining orders of the District Court are confirmed
Note: These orders appear to relate to the concurrent Ceerose appeal, not the DSF Constructions appeal, which was dismissed by the majority. Practitioners should consult the full judgment to confirm the precise orders made in each matter.
Key Takeaways
- A sentencing judge's failure to explicitly reference the maximum penalty or its legislative increase does not automatically establish appellate error, provided the record does not affirmatively demonstrate that those matters were disregarded.
- Where an offender's responsibility stems from leaving a hazard in an unsafe state, rather than from any awareness of or involvement in the specific act that triggered the harm, objective seriousness may be assessed at a lower level than it might otherwise attract.
- In dismissing the manifest inadequacy ground, the Court considered the respondent's small business size, genuine remorse, cooperation with authorities, and prompt implementation of safety measures as relevant mitigating factors in WHS penalty proceedings.
- Unexplained or insufficiently explained delay by the Crown in prosecuting a sentence appeal may ground the exercise of the court's residual discretion not to intervene, even where error in the original sentence is established.
- Fullerton J's dissent illustrates that the assessment of a director's or officer's state of knowledge at the time of the offence can be a pivotal and contested issue in characterising objective seriousness under the Work Health and Safety Act 2011 (NSW).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), s 6
Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- 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
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 8
- Mulato v R [2006] NSWCCA 282
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Darwich [2018] NSWCCA 46
- R v Hallocoglu (1990) 29 NSWLR 67
- R v KB [2011] NSWCCA 190