Citation: SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163
Court: District Court of New South Wales
Date: 18 May 2022
Judge: Scotting DCJ
Background
Saunders Civilbuild Pty Ltd is a construction company whose operations include bridge and wharf construction, concrete works, and piling services. The company operated a piling yard at Redhead, New South Wales, and employed workers who also performed work at construction sites. Following the acquisition of Civilbuild Pty Ltd in 2017, the defendant took on that company's employees and its existing contractor relationships.
Geoffrey Edwards was an independent truck driver contracted to the defendant to transport plant, equipment, and materials. He operated a heavy combination vehicle consisting of a prime mover and a low loader trailer. On 16 February 2018, Mr Edwards was fatally injured in an incident at a worksite. The circumstances of that incident formed the basis of the prosecution.
The defendant was found guilty after trial of an offence under section 32 of the Work Health and Safety Act 2011 (WHS Act), which concerns a failure by a person conducting a business or undertaking to comply with a health and safety duty in circumstances that expose a person to a risk of death or serious injury. The maximum penalty is a fine of $1.5 million. This judgment deals with sentencing only; the findings of guilt were addressed in an earlier decision.
Legal Issues
- What fine, within the maximum of $1.5 million, was appropriate having regard to the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the defendant's prospects of rehabilitation and expressions of remorse?
- What weight should be given to aggravating factors?
- Whether an adverse publicity order (APO) should be made, and if so, in what form?
- The role of general and specific deterrence in sentencing for WHS offences of this nature.
Decision
His Honour assessed the objective seriousness of the offence in the context of the defendant's safety management system. The defendant had adopted an Integrated Management System (IMS) in August 2017 and had in place a number of Safe Work Method Statements (SWMSs) for activities including pile driving and the loading and unloading of trucks. However, the court found that none of the SWMSs in force at the time of the incident addressed a relevant practice (the verbal direction and pre-slinging of loads) that had developed on the ground. This gap between documented procedures and actual site practice was a central feature of the offending.
The court weighed mitigating and aggravating factors in determining the penalty. Mitigating factors included the defendant's prospects of rehabilitation and evidence of remorse. Aggravating factors were also identified, though the specific detail of those factors was contained in portions of the judgment not reproduced here. The court noted the impact of Mr Edwards' death on his family, taking into account the victim impact statement from his wife of almost 30 years, and treated that impact as harm done to the community.
The court imposed a fine of $375,000, representing 25 percent of the maximum available penalty. The court also ordered an adverse publicity order (APO), requiring the defendant to publish a formal notice in two industry publications: the Master Builders Association Magazine and the Civil Contractors Federation Bulletin. In explaining the APO, the court reasoned that the defendant's existing obligation to disclose the offence in government tender applications was materially different from an APO, because the latter reaches a broader audience and serves the sentencing purposes of deterrence and denunciation. The court also observed that the costs of complying with the APO were modest, and that the defendant's safety management system required review to ensure comprehensive implementation of key safety measures.
Orders Made
- The defendant was convicted.
- A fine of $375,000 was imposed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- An adverse publicity order was made requiring the defendant to publish a specified notice in two consecutive editions of each of: the Master Builders Association Magazine and the Civil Contractors Federation Bulletin, on or before 30 June 2022 (or the first edition after that date).
- The notice must be no less than a full page (or at least 28 cm x 5 columns), in minimum 12-point Times New Roman or equivalent, and in full colour.
- The defendant must provide the prosecutor with evidence of compliance by 5pm on 30 June 2022.
- The defendant is to pay the prosecutor's costs of the proceedings.
Key Takeaways
- The District Court confirmed that an adverse publicity order serves purposes of deterrence and denunciation distinct from a company's existing disclosure obligations in tender processes, because the APO is directed at a broader public audience.
- A fine of $375,000 (25% of the $1.5 million maximum) was considered appropriate after weighing the objective seriousness of the offence against mitigating factors including remorse and rehabilitation prospects.
- Where a documented safety management system does not reflect actual site practices, the gap between paper procedures and what workers actually do can be a material factor in assessing the seriousness of a WHS offence.
- Under section 32 of the WHS Act, the maximum penalty for a body corporate that fails to comply with a health and safety duty, thereby exposing a person to the risk of death or serious injury, is a fine of $1.5 million.
- The court treated the death of the contracted truck driver and its impact on his family as harm done to the community, relevant to the exercise of the sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (the verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412