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District Court 24 October 2019

SafeWork NSW v Miroslav DAVIDOVIC

[2019] NSWDC 597

Public order & justice offences
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING A BUSINESS DUTY OF EMPLOYERS MITIGATING FACTORS

Citation: SafeWork NSW v Miroslav Davidovic [2019] NSWDC 597
Court: District Court of New South Wales
Date: 24 October 2019
Judge: Strathdee DCJ

Background

The defendant was an individual who conducted a business involving the removal of large steel beams from a site at Unanderra, New South Wales. On 24 June 2016, he coordinated a crane-assisted operation to load the beams onto flat-top trailer trucks for transport. A serious injury occurred during this operation when a beam toppled and crushed the legs of a truck driver who had positioned himself on the trailer to assist with guiding the load.

The defendant had engaged a crane operator through a third-party company, two subcontracted truck drivers, and a concreter named Mr Zugic to assist with the work. Neither the defendant nor Mr Zugic held a current high-risk work (HRW) licence for "Dogging work," which is the regulated activity of applying slinging techniques to safely attach loads to a crane and directing crane operators when the load is out of their view. The defendant had previously held such a licence, but it had expired.

The defendant initially faced a more serious charge under s 32 of the Work Health and Safety Act 2011 (the Act), alleging that his failure to comply with his duty as a person conducting a business exposed the injured worker to a risk of death or serious injury. After a four-day hearing, the court returned a verdict of not guilty on that charge. However, the defendant had already pleaded guilty to two separate offences: performing Dogging work without a valid HRW licence (s 43(1)), and permitting an unlicensed worker, Mr Zugic, to carry out Dogging work (s 43(2)).

  • What was the appropriate penalty for the defendant's guilty pleas to the two s 43 offences under the Work Health and Safety Act 2011?
  • What discount should apply for pleas of guilty, and how should the timing of each plea be treated?
  • How should the principle of totality be applied across two separate offences?
  • What weight, if any, should be given to the defendant's claimed financial hardship in setting the fine?
  • What were the relevant aggravating and mitigating factors bearing on objective and subjective seriousness?

Decision

The court sentenced the defendant on two offences: carrying out Dogging work without a valid HRW licence (s 43(1)), and allowing an unlicensed worker to perform that work (s 43(2)). Each offence carries a maximum fine of $20,000 for an individual. The court assessed a base fine of $1,000 for the s 43(1) offence and $2,000 for the s 43(2) offence, reflecting the objective seriousness of each.

A 25% discount applied to both matters for guilty pleas. The s 43(1) plea had been entered before trial began and was treated as an early plea. The s 43(2) plea was entered during the trial, but the court still assessed it as attracting a 25% discount, taking into account that the charge was amended during the proceedings.

On the question of financial hardship, the court acknowledged the defendant's submission that he was under financial strain and would need to borrow money to pay any fine. The court applied the established principle that the appropriate fine is first determined by reference to the gravity of the offence, and then adjusted for the defendant's means. However, because the defendant had not provided evidence of his financial position, the court found he had not discharged the onus of demonstrating an inability to pay, and declined to reduce the fines further on that basis.

Applying the totality principle, which requires a court to ensure that the overall penalty is proportionate to the totality of the offending rather than simply adding individual penalties together, the court arrived at a combined fine of $2,250. The court ordered that 50% of that amount be paid to the prosecutor, as required under s 122(2) of the Fines Act 1996.

Orders Made

  • The defendant was convicted on both offences.
  • A fine of $750 was imposed for matter 2018/184262 (the s 43(1) offence: $1,000 reduced by 25%).
  • A fine of $1,500 was imposed for matter 2018/184282 (the s 43(2) offence: $2,000 reduced by 25%).
  • Total combined fine: $2,250.
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A defendant who bears the onus of establishing financial hardship as a mitigating factor in sentencing must provide evidence of their financial circumstances; bare submissions are insufficient to satisfy that onus.
  • Under the Act, performing Dogging work without a current HRW licence, and permitting an unlicensed worker to do so, are distinct offences each carrying a maximum fine of $20,000 for individuals, even where the same factual circumstances give rise to both charges.
  • The District Court applied the totality principle to ensure that the aggregate penalty across two related offences reflected the overall criminality of the conduct, rather than treating each fine as entirely independent.
  • A guilty plea entered during trial, rather than at an early stage, may nonetheless attract a discount where the charge was amended during the proceedings, though courts retain discretion to calibrate the discount to the timing and circumstances of the plea.
  • Acquittal on a more serious charge does not preclude conviction and penalty on lesser charges arising from the same incident, where the defendant has pleaded guilty to those lesser offences.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 43(1), 43(2)
- Work Health and Safety Regulation 2011 (NSW), cl 5, cl 81
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)

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 Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100
- Jahandideh v R [2014] NSWCCA 178
- McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; (2004) 137 IR 310
- Nash v Silver City Drilling (NSW) [2017] NSWCCA 96
- WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462