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District Court 16 June 2023

SafeWork NSW v N Moit & Sons (NSW) Pty Ltd

[2023] NSWDC 205

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205
Court: District Court of New South Wales
Date: 16 June 2023
Judge: Strathdee DCJ

Background

The defendant, N Moit & Sons (NSW) Pty Ltd, is a large earthmoving and recycling business employing approximately 250 people. It operated a rock and masonry waste recycling facility at Clarendon, NSW, where building rubble such as concrete and bricks was crushed and sold as aggregate and road base. The sole director and company secretary was Mr Michael Moit.

A general labourer, Mr Mohammad Sharif, commenced employment at the facility in January 2014 and worked there for years on long shifts, spending at least half of each day in close proximity to concrete crushing machines. Those machines generated respirable crystalline silica dust (RCS), a known cause of silicosis, a serious and potentially fatal occupational lung disease.

SafeWork NSW prosecuted the defendant for failing, between 28 January 2014 and April 2021, to comply with its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as was reasonably practicable, the health and safety of its workers. The defendant pleaded guilty on 6 February 2023.

  • Whether the defendant breached its primary duty under s 19(1) of the WHS Act by exposing workers to RCS without adequate controls, contrary to s 33 of the Act
  • The appropriate level of objective seriousness of the offence for sentencing purposes
  • What weight to give to mitigating factors, including the early guilty plea, remorse, post-offence remediation, and cooperation with investigators
  • The appropriate penalty, including the applicable discount for the utility of the guilty plea

Decision

The court accepted the defendant's guilty plea and proceeded to sentence. During the relevant period, the defendant failed to implement adequate air monitoring, health monitoring, or a systematic respiratory protection program for workers such as Mr Sharif. The safe work method statement for general labourers did not identify dust as a hazard, and Mr Sharif had not been required to sign the concrete crusher SWMS that did identify dust inhalation risks. Fit testing of respiratory protective equipment (RPE) was not conducted prior to April 2021, and disposable masks in use before that time were inadequate for the level of RCS exposure workers faced.

The hazards of RCS had been well-documented in publicly available guidance materials throughout the relevant period, including an Australian Institute of Occupational Hygienists position paper published in 2009 and a Code of Practice published in 2014. The court found the defendant's failures persisted over a lengthy period despite accessible knowledge about the risks.

In mitigation, the court accepted that the defendant had taken substantial post-offence remedial steps, including installing water-based dust suppression systems, providing upgraded full-face powered air purifying respirators, updating safe work method statements, and engaging an independent WHS consultant. The director's affidavit demonstrated genuine remorse and contrition, and the defendant had cooperated with SafeWork NSW during the investigation. The court found the prospects of rehabilitation to be very good and the risk of reoffending low.

The court set the appropriate pre-discount fine at $100,000, well below the maximum of $500,000, reflecting these mitigating factors. A 25% discount was applied for the early guilty plea in accordance with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383, reducing the final penalty to $75,000.

Orders Made

  • The defendant is convicted.
  • The defendant is ordered to pay a fine of $75,000 (reduced by 25% from a base fine of $100,000 to reflect the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

Key Takeaways

  • A business conducting crushing operations involving masonry waste has a duty under s 19(1) of the WHS Act to implement systematic controls against RCS exposure, including air monitoring, health monitoring, fit-tested RPE, and hazard identification in all relevant safe work method statements.
  • Failure to protect workers from RCS over a period of more than seven years, in circumstances where the hazard was well-known and guidance materials were publicly available, constituted a significant breach, even though no specific adverse health outcome in the worker was identified as having occurred by the time of sentencing.
  • Post-offence remediation, genuine remorse, cooperation with the regulator, and an early guilty plea are all available as mitigating factors in WHS sentencing, and together substantially influenced the penalty imposed here.
  • Under the principles in R v Thomson & Houlton, an early guilty plea attracts a discount of up to 25% on the utilitarian value of the plea, which the District Court applied in full in this case.
  • The maximum penalty for a Category 2 WHS offence by a corporation is $500,000; the court's imposition of a $75,000 fine reflects significant mitigation but does not suggest a general tariff for comparable conduct.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33
- Work Health and Safety Regulation 2011 (NSW), cl 49
- Work Health and Safety Regulation 2017 (NSW), cl 49
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Key Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383 (guilty plea discount)
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Veen v R (No. 2) (1988) 164 CLR 465
- SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700