Citation: [2022] NSWDC 276
Court: District Court of New South Wales
Date: 21 July 2022
Judge: Russell SC DCJ
Background
Aussie Skips Recycling Pty Ltd operated a waste transfer station at South Strathfield, where workers received, sorted, and processed construction and other waste. On 24 May 2018, two workers were picking and sorting through waste piles by hand in close proximity to an operating front-end loader. One of those workers, Mr Girishanth Singarajah, was fatally injured when the front-end loader reversed over him.
The company's General Manager, Emmanuel Roussakis, was present on site when the incident occurred and held overall responsibility for the management and business operations of the company. Both Aussie Skips Recycling Pty Ltd and Roussakis were charged with separate work health and safety offences arising from the same incident.
Both defendants pleaded guilty. The proceedings before the District Court concerned sentencing for those offences, including the determination of appropriate fines having regard to objective seriousness, mitigating factors, and capacity to pay.
Legal Issues
- What penalty was appropriate for Aussie Skips Recycling Pty Ltd as a person conducting a business or undertaking (PCBU) that failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), contrary to s 32 of that Act?
- What penalty was appropriate for Emmanuel Roussakis as an officer of the PCBU who failed to exercise due diligence to ensure the company complied with its duty, contrary to ss 27(1) and 32 of the Act?
- What discount, if any, should be applied to reflect early guilty pleas?
- What weight should be given to mitigating factors, including cooperation with the prosecutor?
- How should prosecution costs be dealt with?
Decision
The court assessed the objective seriousness of both offences in light of the multiple, significant failures to eliminate or minimise a foreseeable and serious risk. Those failures included: no risk assessment was conducted; there was no physical separation between pedestrian workers and the front-end loader; no safe work procedures or traffic management plan were in place; workers lacked adequate means of communication with plant operators; and workers had not received adequate information, instruction, or training in a language and format they could understand.
For Aussie Skips, the court determined a base fine of $700,000 (against a maximum of $1,500,000) before applying a 25 per cent reduction for the early guilty plea, resulting in a fine of $525,000. For Roussakis, the court set a base fine of $80,000 (against a maximum of $300,000), also reduced by 25 per cent for the early plea, producing a fine of $60,000. The court noted mitigating factors including cooperation with the prosecutor and the provision of assistance to law enforcement authorities.
No submission was made by either defendant regarding capacity to pay, so the court did not adjust the fines on that basis. The court also applied s 122(2) of the Fines Act 1996 (NSW), directing that 50 per cent of each fine be paid to the prosecutor. Both defendants were also ordered to pay the prosecutor's costs, as agreed between the parties.
Orders Made
Aussie Skips Recycling Pty Ltd:
- Convicted of the offence under ss 19(1) and 32 of the Work Health and Safety Act 2011 (NSW)
- Fined $525,000 (base fine of $700,000, reduced by 25% for early guilty plea)
- 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
Emmanuel Roussakis:
- Convicted of the offence under ss 27(1) and 32 of the Work Health and Safety Act 2011 (NSW)
- Fined $60,000 (base fine of $80,000, reduced by 25% for early guilty plea)
- 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
Key Takeaways
- The District Court treated the simultaneous failure across multiple control measures, including the absence of any risk assessment, physical separation, safe work procedures, traffic management planning, and adequate training, as central to assessing the objective seriousness of the offences.
- An officer's physical presence at the workplace and day-to-day management role did not shield against personal liability under s 27(1) of the Work Health and Safety Act 2011 (NSW); the due diligence duty required affirmative steps to ensure the PCBU had appropriate resources and processes in place.
- A 25 per cent reduction in fine applied to both defendants to reflect early guilty pleas, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where no submission is advanced about capacity to pay, the sentencing court will not reduce a fine on that basis, even for a small business defendant.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half of each fine be paid directly to the prosecutor, a mechanism available in WHS prosecutions that practitioners in this field should be aware applies routinely alongside costs orders.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cl 214, Pt 3.1
- 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 Harris Holdings NSW Pty Ltd [2017] NSWDC 299
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465