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District Court 18 December 2020

SafeWork NSW v MACFIN Building Solutions Pty Ltd

[2020] NSWDC 776

Other
CRIME WORK HEALTH AND SAFETY RISK OF DEATH OR SERIOUS INJURY DUTY OF PERSON UNDERTAKING BUSINESS PROCEDURAL REASONABLE PRACTICABILITY

Citation: SafeWork NSW v MACFIN Building Solutions Pty Ltd [2020] NSWDC 776
Court: District Court of New South Wales
Date: 18 December 2020
Judge: Strathdee DCJ

Background

MACFIN Building Solutions Pty Ltd, a waterproofing contractor, was engaged by a principal contractor to carry out waterproofing work on the roof of a residential property in St Ives, New South Wales. The roof contained a void measuring 1.6 by 2.9 metres, covered only by green shade cloth and wire mesh, which was not strong enough to support a person's weight. No adequate fall prevention devices, site-specific safe work method statements, or worker inductions were in place.

On 26 July 2017, an experienced waterproofer attending the site fell through the void, dropping approximately 3.2 metres onto a rock garden below. He sustained catastrophic injuries, including intracranial injuries, spinal, skull and facial fractures, a collapsed lung, and abdominal bleeding. He later died in hospital.

The defendant pleaded guilty to a Category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW), which carries a maximum penalty of $1,500,000. The sentencing hearing proceeded with the sole director, Dominic Finlay, appearing unrepresented on the company's behalf.

Legal Issues

  • Whether the offence was objectively serious, and where it sat on the scale of criminal culpability referable to the maximum penalty
  • What weight to give general and specific deterrence in sentencing for a fatal fall from height
  • Whether the defendant was entitled to a 25 percent discount for an early plea of guilty, given the plea was entered at the eighth mention of the proceedings
  • What regard the court should give to the defendant's limited financial capacity to pay when fixing the fine
  • Whether costs should be ordered given the defendant's financial circumstances

Decision

Objective seriousness: The court found that the risk of falling through the void was obvious and foreseeable, and that measures to address it were reasonably practicable but were not taken (at [74]). The defendant had conducted a site inspection two weeks before the incident, identified the void, and assessed it as low risk, yet no site-specific safe work method statement was prepared, no workers were inducted or instructed about fall hazards, and no fall prevention devices were installed (at [25]-[32], [47]-[50]). The court assessed the offence as objectively serious and placed it in the mid-range of offending (at [75]).

Deterrence: General deterrence was identified as a significant factor, given that falls from height are a major cause of death and serious injury in the construction industry (at [80]). The court observed that imposing a deterrent component was intended to compel other corporations and individuals to plan and implement proper procedures to eliminate or minimise fall risks (at [81]-[82]). Specific deterrence was also relevant, given the defendant continues to conduct waterproofing work involving ongoing fall hazard management (at [88]).

Early plea discount: The prosecution submitted that the plea, entered at the eighth mention, did not warrant the conventional 25 percent discount. The court accepted that the defendant had experienced difficulties with legal representation and that the plea came before the matter was listed for trial. On that basis, the full 25 percent discount was applied (at [94]).

Financial capacity and costs: The director gave sworn evidence, adduced by the prosecutor to assist the unrepresented defendant, that the company held no money in the bank and that he was using personal resources to keep the business operating. The court accepted this evidence and afforded some leniency in fixing the base fine, while making clear this would not override the need for deterrence (at [100]). To balance the need for general deterrence against the defendant's limited capacity to pay, the court made no order as to costs, noting that prosecution costs form part of the overall punishment (at [103]-[105]).

Orders Made

  • The defendant is convicted.
  • The appropriate fine is $200,000, reduced by 25% for the early guilty plea to $150,000.
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • No order as to costs.

Key Takeaways

  • The District Court confirmed that where a foreseeable fall hazard was identified prior to an incident but inadequately assessed and left uncontrolled, an offence under section 32 of the Work Health and Safety Act 2011 will be treated as objectively serious and placed in the mid-range of culpability, even absent any mental fault element (at [57], [74]-[75]).

  • General deterrence carries substantial weight in WHS sentencing for fall-from-height fatalities, reflecting the frequency and severity of such incidents across the construction industry (at [80]-[82]).

  • A guilty plea entered before trial was listed attracted the conventional 25 percent utilitarian discount, notwithstanding it was not entered at the first available opportunity, where the delay was attributable to difficulties with legal representation (at [94]).

  • Prosecution costs form part of the overall punitive outcome in WHS proceedings; a court may waive those costs where there is evidence of genuine financial hardship, treating the waiver itself as a mechanism for balancing deterrence against capacity to pay (at [103]-[105]).

  • Immediate post-incident remediation, cooperation with the regulator, expressions of genuine remorse, and the absence of prior convictions are all recognised mitigating factors in WHS sentencing, though they remain subsidiary to the primacy of the offence's objective seriousness (at [66]-[67], [87]-[93]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
- Work Health and Safety Act 2011 (NSW)
- Work Health and Safety Regulation 2011 (NSW)

Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- 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; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [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; Attorney General for NSW 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 Emu Group Pty Limited [2019] NSWDC 537
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700