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District Court 17 November 2023

SafeWork NSW v Meoushy

[2023] NSWDC 498

Other
CRIMINAL LAW OBJECTIVE SERIOUSNESS MITIGATING FACTORS AGGRAVATING FACTORS PLEA OF GUILTY GENERAL DETERRENCE

Citation: SafeWork NSW v Meoushy [2023] NSWDC 498
Court: District Court of New South Wales
Date: 17 November 2023
Judge: Strathdee DCJ

Background

On 24 August 2020, a worker was seriously injured at a construction site at Edmundson Park, NSW. While installing a type of walling block known as Dincel, the worker was struck by bundles of steel reinforcement bars being moved by a crane. He sustained multiple segmental rib fractures and a torn right rotator cuff, requiring hospitalisation and surgical repair.

The defendant was a person with management and control of the workplace. He became aware of the incident within approximately five minutes of it occurring. Despite this, he directed crane work and concrete pumping to resume, and the formwork deck where the worker had been pinned or crushed was rebuilt. This disturbed the incident scene before a SafeWork NSW inspector arrived.

SafeWork NSW prosecuted the defendant for failing to comply with his duty under s 39(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as was reasonably practicable, that the site was not disturbed until an inspector arrived or directed otherwise. The defendant pleaded guilty.

  • What was the appropriate sentence for an individual who failed to ensure a notifiable incident site remained undisturbed, contrary to s 39(1) of the WHS Act?
  • Where did the offending sit on the scale of objective seriousness, relative to the maximum penalty?
  • What weight should be given to mitigating factors, including an early guilty plea, good character, remorse, and no prior convictions?
  • What discount applied to reflect the utilitarian value of the guilty plea?
  • Whether the prosecutor's costs should be ordered against the defendant.

Decision

Strathdee DCJ assessed the objective seriousness of the offence by reference to the maximum penalty of 115 penalty units ($11,729.80 for an individual), treating that figure as a yardstick for the worst case. Her Honour accepted that a breach of s 39 is objectively less serious than a breach of the primary safety duties under ss 19 and 20 of the WHS Act, and that the penalty should reflect that difference. The court noted that the defendant was the individual who personally directed the work to recommence, which was an agreed fact.

Several factors bore on culpability. The worker had sustained serious injuries requiring surgery. The defendant was the one who directed the resumption of work that disturbed the scene. However, some context existed: the defendant held a current senior first aid certificate and had observed the worker for a period after the incident before directing work to recommence.

On subjective factors, the court accepted that the defendant had no prior convictions under work health and safety law, was of good character, was unlikely to reoffend, had good prospects of rehabilitation, and had demonstrated genuine remorse. Her Honour applied the instinctive synthesis approach to arrive at a fine of $6,000 before any discount.

The defendant entered an early guilty plea, and the prosecutor accepted it was open to allow the maximum discount. The court reduced the fine by 25 percent in accordance with the principles in R v Thomson and Houlton and the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). On costs, the court confirmed that costs orders in this context are compensatory rather than punitive, and ordered the defendant to pay the prosecutor's costs as agreed or assessed.

Orders Made

  • The defendant is convicted.
  • A fine of $6,000 was determined to be appropriate, reduced by 25% for the early guilty plea to a final fine of $4,500.
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • The defendant is to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • Under s 39(1) of the WHS Act, a person with management or control of a workplace where a notifiable incident occurs must ensure the site is not disturbed until a SafeWork NSW inspector arrives or directs otherwise. An individual who personally directs work to recommence in breach of that duty faces direct criminal liability.
  • The maximum penalty for an individual under s 39 (115 penalty units, or $11,729.80 at the relevant time) signals that this offence sits at a lower tier of objective seriousness than breaches of the primary safety duties in ss 19 and 20, and sentencing courts must calibrate penalties accordingly.
  • Where a defendant enters a plea of guilty at an early stage, a discount of up to 25% for the utilitarian value of that plea remains available and was applied in full in this case.
  • Good character, absence of prior work health and safety convictions, remorse, and low risk of reoffending are relevant mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW), though they play a subsidiary role and cannot produce a penalty that fails to reflect the seriousness of the offence.
  • Costs orders against a defendant in WHS prosecutions are compensatory in nature, not punitive, following the High Court's reasoning in Latoudis v Casey (1990) 170 CLR 534.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 20, 36, 39(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Latoudis v Casey (1990) 170 CLR 534
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- R v Cage [2006] NSWCCA 304
- R v MA [2004] NSWCCA 92
- R v MMK [2006] NSWCCA 272
- R v Miria [2009] NSWCCA 68
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Haynes v CI and D Manufacturing (No 2) (1995) 60 IR 455