Citation: SafeWork NSW v Bennett (No.2) [2022] NSWDC 453
Court: District Court of New South Wales
Date: 7 October 2022
Judge: Russell SC DCJ
Background
The defendant operated a small crane hire business as a sole trader. On 25 October 2018, a crane he owned was being operated at the Moss Vale Sewerage Treatment Plant to load a dismantled centrifuge onto a flatbed truck. The crane's boom came into contact with, or close proximity to, live overhead power lines. Two workers at the site, Mr Voight and Mr Whitford, suffered electric shocks.
Following a trial, the defendant was convicted on 12 August 2022 of two offences under the Work Health and Safety Act 2011 (NSW). The first offence involved a failure to comply with his duty to workers under s 19(1), which exposed the crane operator, Mr Druce, to a risk of death or serious injury. The second offence involved a failure to comply with his duty to other persons under s 19(2), which exposed Mr Voight and Mr Whitford to an equivalent risk. Both offences are contrary to s 32 of the Act, which carries a maximum fine of $300,000 for each.
This judgment addressed sentencing for both offences. The defendant represented himself throughout both the trial and the sentencing hearing.
Legal Issues
- What was the objective seriousness of each offence, having regard to the nature of the risk, the foreseeability of harm, the steps available to reduce that risk, and the actual consequences?
- What mitigating and aggravating factors applied to the defendant's personal circumstances?
- What was the defendant's capacity to pay a financial penalty?
- How should the totality principle apply where two offences arose from the same incident?
- What approach to parity was appropriate by reference to comparable sentencing decisions?
Decision
Objective seriousness. The court found the defendant's culpability to be at the lower end of the spectrum, but not negligible. The defendant knew of the risk of overhead power lines, the risk was objectively foreseeable, and guidance material specifically addressed it. Critically, the steps needed to avoid the harm, such as conducting a site-specific risk assessment, using a dedicated spotter or qualified dogman, and ensuring the crane stayed clear of power lines, were straightforward and involved little cost or inconvenience. The court emphasised, consistent with the Court of Criminal Appeal's reasoning in Nash v Silver City Drilling, that culpability turns on the seriousness of potential harm and the ease of preventive steps, not merely the statistical likelihood of an injury occurring.
Mitigating factors. The defendant had no prior convictions under work health and safety legislation. He accepted responsibility for the injuries and acknowledged that his telephone instructions to the crane operator had been insufficiently clear. He had suffered a significant loss of business as a direct consequence of the incident, with his primary customer ceasing to use him immediately. His general character evidence was positive.
Capacity to pay. The court found that the defendant presently has little or no capacity to pay a fine. His income was modest and sporadic, he rented his home with the assistance of a boarder, and his assets consisted of a car worth approximately $4,000 and a crane maintained with second-hand parts. The court factored this finding into the penalty imposed, reducing the fines substantially below what would otherwise have been appropriate.
Totality and quantum. The court assessed the s 19(2) offence as more serious than the s 19(1) offence, because two persons were exposed to risk and did in fact suffer injury, whereas the crane operator Mr Druce was not injured. Absent capacity-to-pay considerations, the court would have imposed fines of $25,000 and $10,000 (reduced to $5,000 on totality) respectively. Taking into account the defendant's limited financial means and his concurrent obligation to pay prosecution costs, the court reduced those figures to $12,500 and $2,500.
Orders Made
District Court proceedings 2020/303207 (s 19(1) offence):
- Defendant convicted (12 August 2022)
- Fine of $2,500 imposed
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Defendant to pay the prosecutor's costs
District Court proceedings 2020/303225 (s 19(2) offence):
- Defendant convicted (12 August 2022)
- Fine of $12,500 imposed
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Defendant to pay the prosecutor's costs
Key Takeaways
- Under the Work Health and Safety Act 2011 (NSW), a defendant's culpability for failing to address a foreseeable risk is assessed by reference to the severity of potential harm and the ease of available preventive steps, not simply by the probability that injury would actually occur.
- Capacity to pay is a legitimate and significant sentencing consideration in WHS penalty proceedings; where a defendant demonstrates genuine financial hardship, a court may reduce a fine substantially below the level it would otherwise impose.
- The totality principle applies where multiple WHS offences arise from the same incident; a court should identify an appropriate notional penalty for each offence and then reduce the lesser penalty to reflect the overall criminality involved.
- Where one offence involves actual injury to multiple persons and another involves no injury to the person at risk, the District Court treated the former as the more serious of the two for sentencing purposes.
- A defendant's loss of business and livelihood flowing directly from a WHS incident may be treated as a mitigating factor at sentence, alongside the absence of prior relevant convictions and acceptance of responsibility.
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
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- SafeWork NSW v Bennett [2022] NSWDC 332 (primary judgment)
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- SafeWork NSW v Arkwood (Gloucester) Pty Limited (No.2) [2022] NSWDC 201
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Pearce v The Queen (1998) 194 CLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- EPA v Barnes [2006] NSWCCA 246