Citation: SafeWork NSW v MJM Painting Services Pty Limited; SafeWork NSW v Miro Maric [2019] NSWDC 124
Court: District Court of New South Wales
Date: 15 April 2019
Judge: Strathdee DCJ
Background
A painting services company and its director faced sentencing in the NSW District Court following guilty pleas to offences under the Work Health and Safety Act 2011 (WHS Act). The charges arose from an incident on 22 February 2016 at a high-rise construction site in Parramatta. A painter engaged by the company as a sole trader fell approximately six metres through an unprotected gap on an external formwork screen at level 27 of the West Tower, landing on level 25 and sustaining serious injuries including rib fractures.
Two days before the incident, a site safety meeting convened by the principal contractor had directed that no workers were to access or work on the screens unless a static line had been installed and harnesses worn. The company's director attended that meeting on behalf of the company. He did not pass on the safety requirement to the injured worker, and on the morning of the incident he directed the worker by telephone to proceed to level 27 to commence painting. No static lines were in place, no barricades blocked access, and the worker was not warned about the gaps or the need for a harness.
The company (MJM Painting Services Pty Limited) was charged as a person conducting a business or undertaking under section 19(1) of the WHS Act, and the director (Miro Maric) was charged as an officer of the company under section 27. Both pleaded guilty. The maximum penalty for the corporate offence was $1,500,000 and for the officer offence $300,000.
Legal Issues
- The appropriate penalty for the company's failure to ensure the health and safety of workers, contrary to sections 19(1) and 32 of the WHS Act
- The appropriate penalty for the director's failure to exercise due diligence to ensure the company complied with its duty, contrary to sections 27 and 32 of the WHS Act
- The objective seriousness of each offence
- The weight to be given to mitigating and aggravating factors, including the guilty plea, remorse, financial impact, and specific deterrence
- The quantum of prosecution costs
Decision
Strathdee DCJ assessed both offences as being in the lower to mid range of objective seriousness. There was a foreseeable and preventable risk of falling from height, the measures required to eliminate or minimise the risk were not costly or difficult, and actual serious injury resulted when the risk materialised. The director had personally attended the safety meeting where the harness and static line requirement was communicated, yet failed to pass that information to the injured worker and directed him to proceed to work in the hazardous area anyway.
In mitigation, the court accepted that both the company and the director had no prior convictions, that the director demonstrated genuine remorse, and that the incident had effectively ended most of the company's business through a ban from the principal contractor's sites. The court acknowledged some financial impact on the director and his wife, though the tax returns tendered showed income had largely recovered to pre-incident levels by the time of sentencing.
Both offenders were entitled to a 25% discount on their penalties for entering early guilty pleas. Specific deterrence was found to carry reduced weight given the very low likelihood of reoffending, but general deterrence remained a significant sentencing consideration in work health and safety matters.
The court convicted both offenders, imposed fines (reduced by 25% for the guilty pleas), and ordered that 50% of each fine be paid to the prosecutor pursuant to the Fines Act 1996. By agreement, the company was also ordered to pay prosecution costs.
Orders Made
MJM Painting Services Pty Limited:
- Convicted of the offence under sections 19(1) and 32 of the WHS Act
- Fined $187,500 (reduced from $250,000 by 25% for the guilty plea)
- 50% of the fine ordered to be paid to the prosecutor under section 122(2) of the Fines Act 1996
- Ordered to pay prosecution costs of $45,000
Miro Maric:
- Convicted of the offence under sections 27 and 32 of the WHS Act
- Fined $37,500 (reduced from $50,000 by 25% for the guilty plea)
- 50% of the fine ordered to be paid to the prosecutor under section 122(2) of the Fines Act 1996
Key Takeaways
- An officer's personal attendance at a site safety meeting, combined with a subsequent failure to pass critical safety instructions to workers under their direction, weighs heavily as an aggravating factor in WHS Act sentencing.
- Under sections 27 and 32 of the WHS Act, a director's duty of due diligence requires active steps to ensure that safety requirements actually reach the workers who need them, not merely passive awareness of those requirements.
- A 25% sentencing discount for an early guilty plea applied consistently to both the corporate and individual offender, reflecting the utility of the pleas in WHS prosecutions before the District Court.
- Where specific deterrence is low due to the effective destruction of the offender's business relationship with the principal contractor, general deterrence remains a primary sentencing consideration in work health and safety matters.
- The District Court scrutinised financial evidence carefully before accepting claims of reduced capacity to pay, noting that the income figures in the tendered tax returns did not fully support the submission that the financial impact was as significant as claimed.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 27, 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- WorkCover NSW Code of Practice
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Morrison v Waratah; Morrison v Powercoal (2005)
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 388