Citation: SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters [2021] NSWDC 632
Court: District Court of New South Wales
Date: 26 November 2021
Judge: Russell SC DCJ
Background
A painter engaged by a subcontractor fell three metres through an unprotected void on the first floor of a two-storey townhouse under construction, sustaining serious injuries. The principal contractor for the project was a small family company with a sole director who managed daily site operations, including organising trades and overseeing health and safety. Both the company and its sole director were prosecuted by SafeWork NSW.
Each defendant pleaded guilty. The company faced a charge under s 19 of the Work Health and Safety Act 2011 (NSW), which imposes a duty on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers. The director faced a separate charge under s 27 of the same Act, which requires officers of such persons to exercise due diligence to ensure compliance with those duties.
Both offences were prosecuted as Category 3 contraventions under s 33 of the Act. The maximum penalty for the company was $634,700 and for the director $127,050. The sentencing judgment addressed the appropriate fines for each defendant.
Legal Issues
- What was the objective seriousness of each offence, having regard to the nature of the risk and the availability of reasonably practicable control measures?
- What weight should be given to mitigating factors, including the early guilty pleas and the defendants' limited financial capacity?
- How should the court calculate the final fine for each defendant after accounting for capacity to pay and the guilty plea discount?
- How should prosecution costs be apportioned across the two proceedings?
Decision
The court found that the risk involved, falling from height through an unprotected void, was a well-known and foreseeable hazard in the construction industry. The prosecution's particulars identified multiple failures: no temporary edge protection was installed around the void or other elevated areas; no safe work method statement addressed fall hazards; no site-specific induction was provided to the injured worker; and edge protection was not verified before workers were permitted to commence work on the first floor.
Russell SC DCJ assessed the objective seriousness of each offence and determined an appropriate base fine before applying two adjustments. First, the court reduced each fine to reflect the defendants' limited capacity to pay. The company held $70,000 in cash but this was a bond held for home owners warranty insurance purposes and was not available for payment of fines. The director had a modest personal income, significant mortgage commitments and limited borrowing capacity. Second, each fine was reduced by 25 per cent to reflect the early plea of guilty.
The court noted an absence of sentencing guidance from comparable decisions under s 33, because all prosecutions heard in the court over the preceding five years had involved the more serious Category 2 offence under s 32. Russell SC DCJ therefore approached the sentencing exercise without the benefit of directly analogous precedents.
On costs, the parties reached an agreed figure of $39,900 to cover both proceedings. The court ordered that amount to be paid jointly across both matters, rather than duplicating the costs order.
Orders Made
Mirvale Pty Ltd:
- Convicted
- Base fine assessed at $65,000, reduced to $40,000 for capacity to pay, then reduced by 25% for early guilty plea
- Ordered to pay a fine of $30,000
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs of $39,900 (total across both proceedings)
Ronald Ters:
- Convicted
- Base fine assessed at $20,000, reduced to $12,000 for capacity to pay, then reduced by 25% for early guilty plea
- Ordered to pay a fine of $9,000
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs, with the total costs payable across both proceedings capped at $39,900
Key Takeaways
- A Category 3 offence under s 33 of the Work Health and Safety Act 2011 (NSW) applies to both persons conducting a business or undertaking (under s 19) and to officers of those persons (under s 27), and each can be separately prosecuted and sentenced for the same incident.
- Capacity to pay is a material sentencing consideration in WHS prosecutions: the District Court reduced both fines significantly where the defendant company was a small family business and the individual director had modest personal finances and a large mortgage.
- An early guilty plea attracted a 25% reduction in the final fine for each defendant, consistent with the approach to utilitarian value under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The absence of any comparable Category 3 sentencing precedents in the court over the five years preceding this decision meant Russell SC DCJ assessed appropriate penalties without directly analogous guidance, highlighting the relative novelty of s 33 prosecutions in the District Court.
- Where prosecution costs cover two related proceedings, the court can structure the costs order so that a single agreed sum satisfies the costs liability across both matters, avoiding double recovery.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 33
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291, 299, 312
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- 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
- 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
- SafeWork NSW v Ru Gong Li [2018] NSWDC 189
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465