Citation: SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126
Court: District Court of New South Wales
Date: 16 April 2021
Judge(s): Scotting DCJ
Background
HD Projects Pty Ltd was a specialist contractor engaged to install AFS Logicwall panels at a residential construction site in Kellyville, NSW. A separate contractor, All Cranes 4 Hire Pty Ltd (AC), was responsible for providing crane services at the site. On 15 December 2017, a pack of panels was attached to a crane's pallet hook by a HD Projects labour hire worker who was not a qualified dogman (a person licensed to attach and direct crane loads).
As the crane slewed the load over workers below, the bottom panel broke free from its plastic wrapping and fell. The 76-kilogram panel struck two scaffolding labourers, Mr Graff and Mr Sitauti, causing injuries including shoulder, knee, and facial injuries to Mr Graff. Mr Sitauti was taken to hospital for a potential concussion.
HD Projects had been found guilty after trial of an offence under section 32 of the Work Health and Safety Act 2011 (the Act), which concerns a failure by a person conducting a business or undertaking to comply with a health and safety duty, where that failure exposes individuals to a risk of death or serious injury. The sentencing judgment dealt with the appropriate penalty.
Legal Issues
- What fine was appropriate for the section 32 offence, given the circumstances of the incident and the defendant's conduct?
- What weight should be given to aggravating and mitigating factors, including the absence of a guilty plea, the defendant's conduct at trial, remorse, and prospects of rehabilitation?
- How did the parity principle apply, given that the crane contractor AC had pleaded guilty to a similar offence and been fined $150,000?
Decision
The court sentenced HD Projects on the basis that, while the offence was serious, several mitigating factors reduced the penalty from the upper end of the scale. The maximum penalty for a section 32 offence by a corporation is a fine of $1.5 million. The court noted objective features including that the risk of a falling object injuring workers was foreseeable and well-documented in available guidance material, including Australian Standards, SafeWork Australia publications, and the NSW Code of Practice for Construction Work.
On mitigating factors, the court accepted that HD Projects had demonstrated genuine remorse and had good prospects of rehabilitation, including implementing revised safety procedures after the incident. Although no discount applied for a guilty plea (the defendant was convicted after trial), the court gave credit for the cooperative way the defendant conducted the trial itself: it made appropriate admissions, restricted contested issues, and allowed witnesses to give evidence by tendering statements rather than requiring extensive cross-examination. The court expressly commended this approach.
On parity, the court considered the principle that offenders with similar culpability should receive similar sentences. It found AC slightly more culpable than HD Projects for three reasons: AC was the specialist crane contractor best placed to ensure qualified dogmen performed all rigging work; AC had a direct contractual relationship with the principal contractor and was best positioned to insist on an additional dogman; and AC was best placed to prevent an unqualified person from participating in high-risk cranage work.
Having found AC slightly more culpable, and noting that AC had received a fine of $150,000 after a 25% discount for its guilty plea, the court set the fine for HD Projects at $170,000. This figure reflected the somewhat lower culpability of HD Projects compared to AC, while also accounting for the absence of a plea discount.
Orders Made
- HD Projects Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- Fine of $170,000 imposed.
- HD Projects ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed, with the parties and any costs assessor directed to reflect the adjournments sought by the prosecutor in arriving at the quantum.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- The District Court confirmed that, even where a defendant is convicted after trial, meaningful credit can still be given for cooperative and efficient conduct during the proceedings, separate from any plea discount.
- A fine of $170,000 was imposed on a contractor convicted of a category 2 work health and safety offence involving a falling object that injured two workers, out of a maximum penalty of $1.5 million.
- Under the parity principle, courts will compare the relative culpability of co-offenders sentenced for similar conduct; here, the crane contractor's specialist role and superior contractual position to prevent the unsafe practice made it slightly more culpable than the building contractor.
- Aggravating features identified included the foreseeability of the falling-object risk and the availability of well-publicised guidance materials that, if followed, could have prevented the incident.
- Genuine remorse, post-incident remediation, and good rehabilitation prospects were accepted as mitigating factors, even where the defendant had contested the charge at trial.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 765 (the verdict judgment)
- Green v The Queen (2011) 244 CLR 462 (parity principle)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Thangavelautham [2016] NSWCCA 141
- R v Youkhana [2004] NSWCCA 412