Citation: SafeWork NSW v AKA Civil Australia Pty Limited (No. 3) [2020] NSWDC 48
Court: District Court of New South Wales
Date: 16 March 2020
Judge: Russell SC DCJ
Background
AKA Civil Australia Pty Limited was a demolition, bulk excavation and civil works company engaged under a subcontract to demolish three two-storey buildings on the Pacific Highway at Lane Cove. The company held a restricted demolition licence, which required a nominated supervisor to be present on site at all times during restricted demolition work. On 7 January 2016, the regular site supervisor was on leave and an inexperienced excavator operator was placed in charge of the site in his absence. None of the persons nominated as supervisors on the demolition licence were present that day.
That morning, the acting site supervisor used a 50-tonne excavator to demolish the front facade of the first building on the site. The excavator bucket was used to separate the inner brick layer of the second-storey facade from the outer layer and pull it back into the site. The outer brick layer collapsed outward onto the footpath, bringing down scaffolding and striking overhead power lines. The footpath under the protective structure had remained open to the public during demolition works.
SafeWork NSW prosecuted AKA under s 32 of the Work Health and Safety Act 2011 (NSW), alleging the company had failed to comply with its duty under s 19(2) of that Act and thereby exposed other persons to a risk of death or serious injury. AKA pleaded guilty. This judgment deals with sentencing.
Legal Issues
- What was the objective seriousness of the offence, having regard to the nature of the risk created and the failures involved?
- What weight should be given to mitigating factors, including the guilty plea, cooperation with prosecutors, and absence of prior convictions?
- What fine was appropriate, taking into account the maximum penalty of $1,500,000, the need for general and specific deterrence, and the offender's capacity to pay?
- What discount applied to reflect the timing and circumstances of the guilty plea?
Decision
Russell SC DCJ found the offence was of moderate objective seriousness. The wall collapsed onto a public footpath that remained open during demolition. The risk of death or serious injury to members of the public was foreseeable and significant. The failures were multiple: no adequate risk assessment had been conducted, no compliant demolition work plan was in place, and demolition proceeded without any nominated supervisor on site.
The judge identified several aggravating factors. The risk of harm was foreseeable, the consequences were serious, and the offending arose from a combination of systemic failures rather than a single isolated lapse. Against that, the court weighed a number of mitigating factors: AKA had no prior convictions, cooperated fully with the investigation, provided documents promptly, and ultimately pleaded guilty.
On the guilty plea, the court noted there had been 17 mentions of the matter before the plea was entered to the Amended Summons in December 2019, more than two years after proceedings commenced. The court accepted that a 20 percent discount was nonetheless appropriate in the circumstances.
The court set a base fine of $200,000 (out of a maximum of $1,500,000), which it reduced by 20 percent to $160,000 to reflect the guilty plea. No submission was made about AKA's capacity to pay, so that question did not arise. The court also ordered that 50 percent of the fine be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW), and that AKA pay the prosecutor's agreed costs.
Orders Made
- AKA Civil Australia Pty Limited convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $160,000 imposed (base fine of $200,000 reduced by 20% for the guilty plea).
- 50% of the fine ordered to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- AKA ordered to pay the prosecutor's costs.
Key Takeaways
- A failure to have any nominated supervisor present during restricted demolition work, combined with the absence of an adequate risk assessment and compliant demolition plan, was treated as a combination of systemic failures that elevated the objective seriousness of the offence.
- Under s 32 of the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking can be convicted even where no one was actually injured, provided the conduct exposed others to a risk of death or serious injury.
- A 20% guilty plea discount was applied even though the plea came more than two years into proceedings, following 17 mentions. The court treated the timing as relevant but still gave meaningful credit given the circumstances.
- Where an offender makes no submission about capacity to pay, the court proceeds to set the fine solely by reference to objective seriousness, deterrence, and other sentencing factors without reducing it on financial grounds.
- The District Court applied the Court of Criminal Appeal's guidance from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, acknowledging that specific deterrence must be calibrated to the size and scope of the offender's operations.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, Sch 18B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Occupational Health and Safety Regulation 2001 (NSW), cll 320, 325
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432