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District Court 21 May 2021

SafeWork NSW v Sandhu Construction Group Pty Ltd

[2021] NSWDC 193

Other
CRIME WORK HEALTH AND SAFETY RISK OF DEATH OR SERIOUS INJURY REASONABLY PRACTICABLE LIKELIHOOD OF RISK KNOWLEDGE OF RISK

Citation: SafeWork NSW v Sandhu Construction Group Pty Ltd [2021] NSWDC 193
Court: District Court of New South Wales
Date: 21 May 2021
Judge: Strathdee DCJ

Background

Sandhu Construction Group Pty Ltd is a company providing bricklaying services. It was subcontracted by a principal contractor, P&K Bezzina Pty Ltd, to carry out bricklaying works at a residential construction site in Kellyville, NSW. One of its workers, Mr Lovepreet Singh, was engaged to perform bricklaying at the site under the direct supervision of the defendant's director, who also acted as worksite supervisor.

On 16 August 2017, a partially constructed masonry brick wall collapsed onto Mr Singh. The wall had no temporary bracing in place. Mr Singh sustained devastating injuries, including a severe traumatic brain injury, multiple facial and cranial fractures, permanent damage to his right eye, and fractures to his left arm. He spent 15 days in the Westmead Hospital Intensive Care Unit before being transferred to a brain injury unit.

The defendant pleaded guilty on 21 April 2021 to an offence under section 32 of the Work Health and Safety Act 2011 (NSW), which applies where a person conducting a business or undertaking (a "PCBU") fails to comply with their primary duty of care under section 19(1) and thereby exposes workers to a risk of death or serious injury. The maximum penalty for a corporation is $1,500,000.

  • What was the objective seriousness of the offence, having regard to the foreseeability of the risk, the nature of the duty breached, and the harm caused?
  • What mitigating and aggravating factors applied to the sentencing exercise?
  • What discount, if any, was warranted for the guilty plea?
  • What fine was appropriate, taking into account the sentence imposed on the principal contractor, P&K Bezzina, in related proceedings?

Decision

Strathdee DCJ found the offence to be of significant objective seriousness. The risk of a partially constructed, unbraced masonry wall collapsing and injuring workers was plainly foreseeable. Guidance material addressing precisely this hazard was available to the defendant well before the incident, including two WorkCover NSW guides on masonry wall safety and the relevant Australian Standard. Despite these resources, the defendant's Safe Work Method Statement contained no risk assessment or control measures for masonry wall construction, and no workers other than the director had signed it.

The defendant's systems of work were found to be deficient in several further respects. It had only a verbal arrangement with the principal contractor, had no knowledge of any risk assessments conducted by P&K Bezzina, and presented no evidence of any remediation of its work practices following the incident. The court noted the absence of any mitigating factors beyond two concessions made by the prosecutor: no prior convictions, and a 5% reduction for the utility of the guilty plea. The late timing of the plea, entered only after the prosecutor's tender bundle was served, supported only a modest discount.

The court compared the outcome with the earlier sentence imposed on P&K Bezzina, which had received a 25% plea discount. The defendant's position was distinguished on the basis that, unlike P&K Bezzina, it had not ceased operations, had not expressed remorse, and had not accepted responsibility for Mr Singh's injuries. The court determined that a higher fine than that imposed on P&K Bezzina was not warranted, given that P&K Bezzina was the principal contractor and therefore bore greater responsibility in the overall hierarchy. A base fine of $700,000 was assessed, reduced by 5% for the guilty plea to a final figure of $665,000.

Orders Made

  • The defendant is convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
  • The defendant is ordered to pay a fine of $665,000 (being $700,000 reduced by 5% for the guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A PCBU's duty under section 19(1) of the Work Health and Safety Act 2011 is one of strict liability: no mental element, such as intent, carelessness, or recklessness, is required for the offence to be established.
  • The District Court confirmed that objective foreseeability of risk is a central consideration when assessing the gravity of a WHS offence, and the existence of readily available guidance material is directly relevant to that assessment.
  • A Safe Work Method Statement that omits risk assessments and control measures for the specific task being performed provides no meaningful protection and will not assist a defendant on sentence.
  • Where a defendant tenders no evidence and makes no post-incident changes to its work practices, and shows no remorse or acceptance of responsibility, the court will find no mitigating factors beyond any concessions the prosecutor elects to make.
  • A guilty plea entered only after service of the prosecution's evidence attracted only a 5% utilitarian discount, consistent with the principle that the timing of a plea bears directly on its utilitarian value.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3A, 12A, 17, 19(1), 32, 46
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 54, 55
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Green v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Attorney General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35
- Morris McMahon & Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36
- Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v ProjectCorp Australia Pty Ltd (2017) 25 DCLR (NSW) 219
- SafeWork v P&K Bezzina [2020] NSWDC 91
- Bulga Underground Operations v Nash (2016) NSWLR 338
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Attorney General (NSW) v Tho Services Ltd (in liquidation) (2016) 264 IR 171
- R v Miria [2009] NSWCCA 68