AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 12 August 2022

SafeWork NSW v Solveco Pty Ltd (No. 2)

[2022] NSWDC 331

Public order & justice offences
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Solveco Pty Ltd (No. 2) [2022] NSWDC 331
Court: District Court of New South Wales
Date: 12 August 2022
Judge: Russell SC DCJ

Background

Solveco Pty Ltd operated a waste management and recycling business in St Marys, NSW. Part of its operations involved shredding aerosol cans for recycling using an industrial shredder in an outdoor product destruction area.

On 31 July 2017, a worker was operating the shredder to process aerosol cans. The shredding released a cloud of flammable gas into the area. Approximately 20 metres away, another worker was using a pressure washer to clean metal filter plates. When that worker switched the pressure washer off at the firebox, the spark caused an immediate explosion and fire, exposing both workers to the risk of serious injury or death.

SafeWork NSW prosecuted Solveco under the Work Health and Safety Act 2011 (NSW). Solveco pleaded guilty to failing to comply with its health and safety duty under section 19 of that Act, thereby exposing workers to a risk of death or serious injury, contrary to section 32. The maximum penalty for the offence was a fine of $1,500,000.

  • What was the objective seriousness of Solveco's offence, having regard to the nature and extent of the failures and the risk created?
  • What weight should be given to mitigating factors, including the guilty plea, cooperation with the investigation, and any expression of remorse?
  • What was the appropriate discount to apply for the guilty plea, given that it was entered during the early stages of the trial rather than at the outset?
  • What fine was proportionate, bearing in mind the purposes of sentencing, including general and specific deterrence?
  • Whether a costs order should follow in favour of the prosecutor.

Decision

The court assessed the objective seriousness of the offence by reference to the nature and extent of Solveco's failures. Solveco had no system of work requiring aerosol cans to be punctured and degassed before shredding, and it failed to prohibit potential ignition sources near areas where flammable gases could accumulate. The company also failed to provide adequate instruction and training to workers about the risks of flammable gases, and failed to review or update risk assessments as circumstances changed. The court considered these to be significant failures, creating a serious and foreseeable risk.

On mitigation, the court acknowledged Solveco's cooperation with the prosecution, including the prompt production of documents and the preparation of an agreed statement of facts. The court also accepted that the guilty plea, though not entered at the earliest opportunity, was entered before any witnesses were called during the trial, thereby saving considerable court time and public expense.

The court applied a 12.5% discount to reflect the timing of the guilty plea. Before applying that discount, the court assessed the appropriate fine at $240,000. Consistent with the principles in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, the court noted that capacity to pay is relevant but not decisive, and that a substantial fine may still be warranted by the seriousness of the offence and the need for general deterrence. No submission on capacity to pay was advanced, so that issue did not arise.

The court also ordered that 50% of the fine be paid to the prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW), and that Solveco pay the prosecutor's costs, as agreed between the parties.

Orders Made

  • Solveco Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
  • Solveco Pty Ltd ordered to pay a fine of $210,000 (reduced from $240,000 by a 12.5% discount for the guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
  • Solveco Pty Ltd ordered to pay the prosecutor's costs.

Key Takeaways

  • A guilty plea entered at the commencement of a trial, before any witnesses are called, can still attract a discount, though a reduced one: the District Court allowed only 12.5%, recognising that the plea was not entered at the earliest available opportunity but nonetheless saved significant court time and public expense.

  • Failure to implement a safe system of work for foreseeable hazardous tasks, such as shredding pressurised containers, represents a serious breach of the duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), particularly where multiple practical control measures were available.

  • Under the sentencing framework confirmed in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, an offender's capacity to pay a fine is relevant but not determinative: the need for general deterrence can justify a substantial fine regardless of the offender's financial position.

  • Cooperation with investigators and prompt production of documents are recognised mitigating factors under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where they do not dramatically alter the sentencing outcome.

  • Agreed statements of facts and agreed costs orders can streamline WHS sentencing proceedings, with the court here adopting both without contest on those points.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- 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
- SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298
- SafeWork NSW v JA Investment Group Pty Ltd [2021] NSWDC 569
- SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441
- SafeWork NSW v CRS NSW Pty Ltd [2017] NSWDC 312
- WorkCover Authority of NSW v Transtank Pty Ltd [2014] NSWDC 288
- WorkCover Authority of NSW v Drayton & Sons Pty Ltd [2014] NSWDC 180
- WorkCover Authority of NSW v Customised Gas Australia Group Pty Ltd and Flynn [2014] NSWDC 361