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District Court 18 July 2023

SafeWork NSW v Dial-A-Dump (EC) Pty Ltd

[2023] NSWDC 260

Public order & justice offences
CRIM INAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS OBJECTIVE SERIOUSNESS

Citation: SafeWork NSW v Dial-A-Dump (EC) Pty Ltd [2023] NSWDC 260
Court: District Court of New South Wales
Date: 18 July 2023
Judge: Scotting DCJ

Background

The defendant, Dial-A-Dump (EC) Pty Ltd, operated an integrated waste recycling and landfill facility at Eastern Creek, NSW. The landfill area at the site was a deep quarry approximately 150 metres deep, where a 55-tonne Caterpillar compactor and other heavy plant operated alongside workers known as "spotters," whose role was to inspect incoming waste loads on foot.

On 27 May 2019, two spotters, Mr Wilson and Mr Swain, were on foot near the tip face conducting a secondary inspection of waste unloaded by a Council truck. A machine operator, Mr Carter, drove the compactor toward the freshly tipped waste without announcing his intentions over the two-way radio, while both spotters remained on foot in the area. The compactor's path toward the workers placed them at risk of death or serious injury.

SafeWork NSW prosecuted the company for failing to comply with the primary duty of care owed to workers under the Work Health and Safety Act 2011 (NSW), specifically by exposing Mr Wilson and Mr Swain to a risk of death or serious injury. The company pleaded guilty, and the matter came before the District Court for sentencing.

  • Whether the defendant breached its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury, contrary to s 32 of that Act
  • The appropriate assessment of objective seriousness of the offence
  • What aggravating and mitigating factors applied, including prior record, remorse, prospects of rehabilitation, and the guilty plea
  • The appropriate quantum of penalty, including the discount to be applied for the guilty plea

Decision

Scotting DCJ sentenced the defendant on its guilty plea to a fine, after finding the offence fell below the mid-range of objective seriousness. The court noted that, while the risk of death or serious injury from a 55-tonne compactor striking a worker on foot was plainly severe, the incident arose from a single failure by the machine operator to communicate his intentions over the radio, rather than from a wholesale disregard of safety systems. The court also observed that the site had functioning safety procedures in place that were simply not followed on the day.

The court identified no aggravating factors. Mitigating factors included the absence of prior convictions, an excellent safety record since commencing operations at the site in 2011, demonstrated remorse, cooperation with the SafeWork investigation, and good prospects of rehabilitation, supported by the remedial steps taken after the incident.

On the guilty plea, the court noted the plea was late, formally entered on the first day of a listed two-week hearing in June 2023, though the defendant had indicated an intention to plead guilty since approximately March 2023. Significant changes to the particulars of the charge were also noted. The court accepted there remained considerable utility in the plea and applied a 15% discount, consistent with the principles in R v Thomson & Houlton and R v Borkowski. The court also acknowledged that general deterrence is a significant factor in safety prosecutions, citing Bulga Underground Operations, while finding the need for specific deterrence was reduced by the defendant's post-incident conduct.

Orders Made

  • Dial-A-Dump (EC) Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
  • Fine of $300,000 imposed, reduced by 15% for the guilty plea, resulting in a fine of $255,000
  • The defendant is to pay the prosecutor's costs, as agreed or assessed
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)

Key Takeaways

  • The District Court placed the offence below the mid-range of objective seriousness where the risk arose from a single failure to follow an established communication procedure, rather than from a systemic absence of safety systems.
  • A 15% guilty plea discount applied even where the plea was entered on the first day of a scheduled hearing, provided there remained genuine utilitarian value in the plea and the lateness was explained by factors such as changes to the charge particulars.
  • Under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, a combination of mitigating factors, including no prior convictions, cooperation with investigators, remorse, and demonstrated remediation, can cumulatively reduce the need for specific deterrence even in serious WHS matters.
  • General deterrence remains a significant sentencing consideration where a defendant continues to operate a business carrying substantial risks to workers, consistent with the NSW Court of Criminal Appeal's guidance in Bulga Underground Operations.
  • The court's application of s 122(2) of the Fines Act 1996 directed half of the monetary penalty to the prosecuting regulator, reflecting a standard feature of WHS penalty orders.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), (h), (i), (k), (m); s 22
- Protection of the Environment Operations Act 1997 (NSW)
- Fines Act 1996 (NSW), s 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1