Citation: SafeWork NSW v Silver Raven Pty Ltd [2019] NSWDC 425
Court: District Court of New South Wales
Date: 19 August 2019
Judge: Scotting DCJ
Background
Silver Raven Pty Ltd operated a civil works and industrial cleaning business using high-pressure and ultra-high-pressure water jetting equipment. In September 2015, it was sub-contracted to perform high-pressure water cleaning of pipework at a Manildra Group starch and ethanol facility in Bomaderry, New South Wales.
On 30 September 2015, a crew of Silver Raven workers attended the site. During the operation, a worker named Joshua Tilocca was left to clean overhead fixed pipework using a high-pressure hose and nozzle assembly operating at up to 20,000 psi. While relocating the hose between sections of pipe, an unsecured high-pressure hose became uncontrolled and caused serious injury to Mr Tilocca, resulting in significant ongoing disabilities.
SafeWork NSW prosecuted Silver Raven under the Work Health and Safety Act 2011 (the Act). The company pleaded guilty to failing to comply with its health and safety duty as a person conducting a business or undertaking, thereby exposing Mr Tilocca and a colleague to a risk of death or serious injury. The proceeding before the District Court concerned sentencing only.
Legal Issues
- The appropriate penalty, having regard to the objective seriousness of the offence under section 32 of the Work Health and Safety Act 2011
- Whether the substantial harm suffered by Mr Tilocca constituted a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999
- What weight to give to various mitigating factors, including the guilty plea, absence of prior convictions, remorse, rehabilitation prospects, and cooperation with investigators
- The appropriate discount for the early guilty plea
- The appropriate order as to prosecution costs
Decision
The court assessed the objective seriousness of the offence as significant. The risk posed by uncontrolled high-pressure hoses in water jetting operations was obvious and well-known in the industry. Adequate risk control measures, including proper supervision, appropriate personal protective equipment, and safe work method statements, were available at low cost. Silver Raven had failed to properly implement its own safe work method statement, and the on-site supervisor had taken on responsibility for two separate crews simultaneously, which contributed to inadequate oversight of Mr Tilocca's team.
On aggravation, the court was satisfied beyond reasonable doubt that the harm suffered was greater than ordinarily expected for an offence that requires only the creation of a risk, not actual injury. Mr Tilocca's serious and ongoing disabilities elevated the objective gravity of the offending. The court also noted that neither Mr Tilocca nor the colleague present had been wearing appropriate hydro-blasting or Kevlar protective pants at the time of the incident.
On mitigation, the court accepted several factors in Silver Raven's favour. The company had no prior convictions in over 20 years of operation. It demonstrated genuine remorse through its operations manager's acceptance of responsibility and through steps taken to assist Mr Tilocca after the incident. The company had also cooperated with SafeWork's investigation. The court gave some weight to the fact that the company's directors had stepped back from day-to-day management due to the serious illness of a child, which partly explained why safety measures had not been properly implemented at the relevant time.
The court set a base fine of $300,000, reflecting the seriousness of the offending while accounting for the mitigating factors. A 25% discount was applied to reflect the utilitarian value of the early guilty plea, in accordance with established sentencing principles, producing a final fine of $225,000. Fifty per cent of that fine was ordered to be paid to SafeWork NSW as the prosecutor.
Orders Made
- Silver Raven Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011
- Fine of $225,000 imposed (reduced from a base of $300,000 by a 25% guilty plea discount)
- Fifty per cent of the fine to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996
- Silver Raven to pay SafeWork NSW's prosecution costs in the agreed sum of $40,000
Key Takeaways
- A guilty plea under the Work Health and Safety Act 2011 attracted a 25% sentencing discount in this case, consistent with the approach in R v Thomson & Houlton and R v Borkowski, reflecting both its utilitarian value and its indication of remorse.
- Under the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of substantial harm requires the court to be satisfied beyond reasonable doubt that the harm was greater or more deleterious than ordinarily expected for the offence. Because a WHS offence under section 32 requires only the creation of risk, any serious actual injury can satisfy this threshold.
- The District Court confirmed that the availability of low-cost control measures and the obvious, industry-known nature of the risk are relevant to assessing objective seriousness in WHS prosecutions.
- Personal circumstances of the offending entity's directors, including a family medical crisis that caused them to step back from operations, were treated as a partial (not complete) mitigating explanation for failures in implementing safe work procedures.
- Cooperation with the regulator's investigation was treated as a distinct mitigating factor separate from the guilty plea, consistent with the statutory framework under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 21A, 22
- Fines Act 1996 (NSW), section 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 & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412