AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 June 2021

SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2)

[2021] NSWDC 250

Other
CRIMINAL LAW — PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS MITIGATING FACTORS AGGRAVATING FACTORS PLEA OF GUILTY

Citation: SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250
Court: District Court of New South Wales
Date: 16 June 2021
Judge(s): Russell SC DCJ

Background

Rockfield Contracting Pty Ltd operated a horizontal directional drilling (HDD) business. On 1 April 2016 at Katoomba, an employee named Paul Walsh was working as a drill tracker near an exit pit when drilling operations caused the drill string and drill head to break free from the ground. The moving equipment struck Mr Walsh, killing him.

SafeWork NSW prosecuted Rockfield under the Work Health and Safety Act 2011 (NSW). Following a six-day trial, the court found Rockfield guilty in its primary judgment ([2021] NSWDC 35) of failing to comply with its duty as a person conducting a business or undertaking under s 19 of the Act, thereby exposing Mr Walsh to a risk of death or serious injury contrary to s 32. The maximum penalty for that category of offence is a fine of $1,500,000.

This sentencing judgment addressed the appropriate penalty, a prosecution project order, and costs.

  • What was the appropriate objective level of seriousness of the offence in circumstances where the specific risk was not known to the defendant or, apparently, to the broader drilling industry?
  • What weight should be given to Rockfield's mitigating factors, including genuine remorse, absence of prior convictions, and the defendant's conduct following the fatality?
  • What is the appropriate financial penalty, having regard to Rockfield's capacity to pay and the sentencing purposes of general and specific deterrence?
  • Whether a project order under s 238 of the WHS Act requiring the production of an educative animated video was appropriate, and on what terms?
  • Whether costs should be ordered against Rockfield.

Decision

The court assessed the objective seriousness of the offence as falling in the low range. A significant factor in that assessment was that no guidance material existed within the industry identifying the specific risk that materialised: neither Rockfield's management and experienced staff, nor industry peers, nor even the HDD equipment manufacturer's manual, had identified the risk of the drill string breaking free and moving laterally or upward to strike a nearby worker. The court accepted that a lower level of culpability is appropriate where the risk is genuinely unknown across the industry, even though a duty of care still existed and was breached.

The court identified several mitigating factors in Rockfield's favour. These included the absence of prior WHS convictions, genuine remorse demonstrated through the director's personal apology and the substantial support provided to Mr Walsh's family and memory (including facilitating repatriation of his remains and a $65,000 memorial donation), and Rockfield's cooperation with the investigation. The court noted the close personal connection between the director and the deceased.

In fixing the penalty, the court drew on the Court of Criminal Appeal's decision in Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319. That decision established a starting point of $400,000 for an offence in the high range of seriousness involving a workplace death, before a 25% discount for an early plea. Because the court assessed this offence as falling in the low range, it set the appropriate fine at $250,000, without any additional discount (as Rockfield had been convicted after trial). The court also made a project order requiring Rockfield to fund the production of a de-identified educative animated video about the incident, noting that this would serve the Act's purposes of protecting workers and promoting safety education.

Orders Made

  • Rockfield Contracting Pty Ltd convicted of the offence.
  • Fine of $250,000 imposed.
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW).
  • Rockfield to pay the prosecutor's costs.
  • Project order made under s 238 of the WHS Act 2011: within six months, Rockfield to fund (up to $15,000) the development and production of a de-identified educative animated video by an external provider, managed by SafeWork NSW, covering the incident, the risks involved, and a suitable safe system of work.
  • Copyright and all exhibiting and distribution rights in the video to be held jointly by SafeWork NSW and Rockfield.
  • The video to bear the SafeWork NSW logo and the NSW Waratah emblem.
  • Rockfield to notify the prosecutor and the District Court Registrar of any change of address for service.
  • Liberty to restore the matter if parties seek to vary the project order or Rockfield fails to comply.

Key Takeaways

  • The District Court confirmed that where a specific risk is not identified in any industry guidance material and is genuinely unknown to the broader industry, that circumstance bears on the objective seriousness of a WHS offence and can support a finding in the low range, even where the breach caused a fatality.
  • A conviction for a Category 2 WHS offence does not require proof that the defendant was aware of the particular mechanism of risk, but ignorance of that risk, where it is industry-wide, can reduce culpability for sentencing purposes.
  • The Court of Criminal Appeal's benchmark in Jamestrong (a $400,000 starting point for high-range seriousness with mitigating factors) provided the reference point from which this court departed downward to $250,000, reflecting the lower objective seriousness assessed here.
  • Project orders under s 238 of the WHS Act are available as an additional sentencing tool and may be particularly apt where a risk was not previously known or documented in industry materials, so that wider publication of the incident and appropriate safe systems may reduce future harm.
  • Genuine and practical post-incident remorse, including material assistance to the deceased's family and cooperation with regulators, remains a relevant mitigating consideration in WHS sentencing.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- SafeWork NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35 (primary liability judgment)
- Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432