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District Court 6 November 2020

SafeWork NSW v Clean Valley Pty Ltd and John Cross

[2020] NSWDC 681

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING A BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Clean Valley Pty Ltd and John Cross [2020] NSWDC 681
Court: District Court of New South Wales
Date: 6 November 2020
Judge: Strathdee DCJ

Background

A waste recycling company operated a facility where skip bin trucks delivered construction waste for loading into semi-trailers by excavator. A contractor's prime mover and two trailers were parked in the shed while being loaded. The parking brakes on those trailers were left disengaged so that an on-board weighing system would function accurately, with only timber chocks holding the vehicle in place.

A skip bin truck driver employed by the company reversed his vehicle in front of the stationary prime mover and stepped out to operate crane controls at the rear of his truck, placing himself between the two vehicles. When the excavator operator loaded waste into the back trailer, the weight shift caused the prime mover and trailers to roll forward, crushing and pinning the worker between the two vehicles. He sustained a fractured right femur, puncture wounds to the groin, and severe bruising, and was off work for approximately nine months.

Both the company and its sole director, who was also operating the excavator at the time of the incident, were prosecuted by SafeWork NSW. Both entered early guilty pleas.

  • Whether the corporate defendant breached its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers, contrary to s 32 of that Act.
  • Whether the individual defendant, as an officer of the company, failed to exercise due diligence under s 27(1) of the Act to ensure the company complied with its duty, also contrary to s 32.
  • What penalties were appropriate having regard to objective seriousness, mitigating and aggravating factors, and the utilitarian value of the guilty pleas.

Decision

Both defendants pleaded guilty, admitting all particulars of the respective charges. The court was required to assess the appropriate penalties by reference to the objective seriousness of the offending, relevant mitigating and aggravating factors, and the discount for early guilty pleas under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court identified several mitigating factors. The defendants cooperated fully with the SafeWork investigation, complied with all statutory notices including Prohibition and Improvement Notices, and had no prior charges. The individual defendant expressed genuine contrition and remorse, both personally and on behalf of the company. The defendants had also provided financial support to charitable causes, which the court accepted as evidence of good corporate citizenship. The court was satisfied the defendants would not re-offend.

The primary aggravating factor was the significant nature of the injuries sustained by the worker, who was off work for approximately nine months before ultimately returning to his pre-accident employment with the company.

The court applied a 25% discount to both fines to reflect the utilitarian value of the early guilty pleas, consistent with the principle that such pleas warrant recognition where there is no reason to reduce the benefit. The pre-discount fine for the company was set at $60,000 and for the individual at $5,000, against maximum penalties of $1,500,000 and $300,000 respectively.

Orders Made

  • The corporate defendant (Clean Valley Pty Ltd) was convicted and fined $45,000 (reduced from $60,000 by 25% for guilty plea).
  • The individual defendant (John Cross) was convicted and fined $3,750 (reduced from $5,000 by 25% for guilty plea).
  • 50% of each fine was ordered to be paid to the prosecutor (SafeWork NSW), as required under the relevant legislation.
  • Both defendants were ordered to pay the prosecutor's costs, agreed in the sum of $33,000.

Key Takeaways

  • Under the Work Health and Safety Act 2011 (NSW), both the corporate entity carrying on a business and an individual officer of that entity can face separate criminal liability arising from the same workplace incident: the company for its primary duty under s 19(1), and the officer for failing to exercise due diligence under s 27(1).
  • A 25% discount applied to both fines where the defendants entered early guilty pleas and there was no reason to limit the benefit, consistent with s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Cooperation with the regulator's investigation, compliance with statutory notices, absence of prior offending, and genuine remorse were all accepted as mitigating factors in the sentencing exercise.
  • Significant physical injury to the worker, and the extended period off work that followed, constituted an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The fines imposed (approximately 3% of the corporate maximum and approximately 1.25% of the individual maximum) reflect the court's assessment of objective seriousness alongside the mitigating factors present, though the decision does not establish a general benchmark for similar offending.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Work Health and Safety Regulation 2017 (NSW), cll 34-38, 203
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW)

Cases:
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 226
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700