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District Court 11 December 2020

SafeWork NSW v WY Constructions Pty Ltd

[2020] NSWDC 746

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

Citation: SafeWork NSW v WY Constructions Pty Ltd [2020] NSWDC 746
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Russell SC DCJ

Background

WY Constructions Pty Ltd was a home building and renovation company engaged as the builder for a residential demolition and construction project at a property in Strathfield, NSW. The company's active director engaged three workers to carry out demolition of an existing single-storey brick cottage. None of the three workers had any prior demolition experience, none held a Construction Industry Induction Card, and at least two had only recently arrived in Australia from China.

On 16 December 2017, a 48-year-old worker died after a masonry chimney fell on her during demolition works at the site. The incident occurred against a background of pervasive safety failures, including the absence of a Safe Work Method Statement (SWMS), no exclusion zone around the chimney, no proper induction or training for workers, and inadequate personal protective equipment. The Demolition Procedures document lodged with the council was based on a sample from a different project and referenced Victorian rather than NSW building regulations.

SafeWork NSW prosecuted WY Constructions for failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the deceased worker to a risk of death or serious injury, contrary to section 32 of that Act. The company entered a guilty plea.

  • What was the appropriate sentence for a category 2 offence under the Work Health and Safety Act 2011 (NSW), carrying a maximum fine of $1,500,000?
  • How should the objective seriousness of the offence be assessed given the multiple safety failures?
  • What weight should be given to mitigating factors, including the guilty plea, cooperation, remorse, and capacity to pay?
  • Whether a work health and safety project order under section 238 of the Act was appropriate in addition to the fine.

Decision

The court assessed the offence as objectively quite serious. The multiple, compounding failures at the site included: no SWMS, no risk assessment, no exclusion zone, no site induction, no verification of workers' qualifications or demolition licences, inadequate personal protective equipment, and a Demolition Procedures document that was substantively deficient and drawn from an unrelated interstate project. The workers who carried out the demolition had no relevant experience whatsoever, and the licensed demolition contractor's qualifications were never checked.

The court identified a number of mitigating factors. These included the guilty plea (entered at an early stage), cooperation with investigators, remorse, no prior convictions, the rehabilitative steps taken since the incident, and the financial circumstances of the company. The court applied the principle that even where multiple mitigating factors exist, an offence of this kind remains objectively serious, citing Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319.

The court set the appropriate base fine at $400,000. Applying a 25% reduction for the early guilty plea, the final fine was fixed at $300,000. The court also made a work health and safety project order under section 238 of the Act, requiring WY Constructions to fund the production of an educational animated video documenting the incident and demonstrating proper safe systems of work for demolition. The order was made in addition to the fine, consistent with section 235(2) of the Act. The defendant was also ordered to pay the prosecutor's costs.

Orders Made

  • WY Constructions Pty Ltd convicted of the offence.
  • Fined $300,000 (base fine of $400,000, reduced by 25% for guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW as prosecutor.
  • WY Constructions Pty Ltd ordered to pay the prosecutor's costs.
  • Work health and safety project order made under section 238 of the Work Health and Safety Act 2011 (NSW), requiring the defendant to fund, within six months, the development and production of a de-identified educative animated video covering:
  • the incident and the risks to which workers were exposed on 16 December 2017;
  • a suitable safe system of work that would have reduced those risks as far as reasonably practicable;
  • guidance material applicable to the demolition of brick structures as determined by SafeWork NSW.
  • SafeWork NSW to manage the project and the external provider.
  • All copyright and distribution rights in the video to be held exclusively by SafeWork NSW.
  • Defendant to notify the prosecutor and the District Court Registrar of any change of address for service.
  • Liberty to restore the matter if the defendant fails to comply with the project order.

Key Takeaways

  • A conviction under section 32 of the Work Health and Safety Act 2011 (NSW) for a category 2 offence will be assessed as objectively quite serious where there are multiple, systemic safety failures, even where the defendant has several mitigating factors in its favour.
  • Under the Act, a work health and safety project order made pursuant to section 238 is available as a sentencing tool in addition to a fine, not as a substitute for it, as confirmed by section 235(2).
  • A 25% reduction in the base fine was applied to reflect an early guilty plea, consistent with the established approach to plea discounts in NSW criminal sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The District Court treated the engagement of inexperienced workers with no induction, no SWMS, no exclusion zone, and no proper supervision as hallmarks of serious objective criminality in the work health and safety context.
  • Capacity to pay remains a relevant consideration in fixing a financial penalty, but it does not displace the need to impose a fine that reflects the gravity of the offence and serves the purposes of general and specific deterrence.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 235, 238
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 142, 292, 293, 299, 309
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Environmental Planning and Assessment Regulations 2000 (NSW), cl 129B
- State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), Sch 9

Cases:
- Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority of New South Wales v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462