Citation: SafeWork NSW v Casella [2023] NSWDC 503
Court: District Court of New South Wales
Date: 20 November 2023
Judge: Scotting DCJ
Background
The offender was the sole director and secretary of Quattro Constructions Pty Ltd, a formwork subcontractor engaged at a mixed-use residential and commercial development in Shellharbour. A 19-year-old apprentice employed by Quattro was assigned to work at the site and had been there for several months prior to the incident.
On 1 February 2021, the apprentice was directed to drill holes in formwork wall panels on level 2 of the site. The penetration nearby (500mm wide by 2000mm long, running from level 2 to the concrete basement floor) was covered by a piece of unsecured, unmarked plywood. As the apprentice stepped onto the plywood, it gave way and he fell approximately 12 metres to the basement floor. He sustained catastrophic injuries including multiple pelvic, lumbar, and limb fractures, a sternal fracture, a tear in his descending aorta, and various internal haematomas. He was hospitalised until 25 February 2021.
SafeWork NSW prosecuted the offender for failing, as an officer of Quattro, to exercise due diligence to ensure that Quattro complied with its health and safety duties under the Work Health and Safety Act 2011 (NSW). The offender pleaded guilty to the charge under s 32 of that Act.
Legal Issues
- Whether the offender breached his duty under s 27 of the Work Health and Safety Act 2011 (NSW) by failing to exercise due diligence to ensure Quattro complied with its health and safety obligations
- The appropriate sentence, taking into account objective seriousness, aggravating and mitigating factors, the guilty plea discount, and the need for general and specific deterrence
- Whether the offender had a limited capacity to pay a fine, warranting a reduction in the penalty
Decision
Objective seriousness and the s 27 duty
The court found the offender took almost no steps to comply with his duty as an officer under s 27. He had limited day-to-day involvement in Quattro's operations and did not inform himself of site hazards, did not require Quattro to develop its own Safe Work Method Statement (SWMS), did not review the SWMS that was ultimately produced (which had been backdated and borrowed from another company's letterhead), and did not ensure adequate supervision or risk assessments were conducted. A SafeWork inspector had visited the site just days before the incident and issued multiple improvement notices relating to fall hazards, including the absence of any SWMS. The offender was not present and was not informed of these notices in any meaningful way that prompted action.
Aggravating and mitigating factors
In aggravation, the court noted the serious injuries sustained by the young apprentice, the complete failure to implement basic safety measures, and the fact that the risk of a fall from an unsecured penetration was obvious and foreseeable. In mitigation, the court accepted the offender's remorse and good prospects of rehabilitation, his lack of prior convictions, and his cooperation with authorities. The offender was also not the most culpable person involved; several other individuals, including those who directed the stripping of formwork beneath the penetration and those responsible for backdating the SWMS, had not been prosecuted. Parity with a co-offender who received a fine of $100,000 (before the discount) was considered.
Capacity to pay
The offender sought a reduction in the fine on the basis that he earned approximately $38,000 per annum, had debts, paid child support, and had little equity in his property. The court found the evidence of limited capacity to pay was insufficient, particularly regarding an asserted debt to a named individual unsupported by any documentary evidence. The court was not satisfied the offender had demonstrated a limited capacity to pay and, in any event, indicated it would not have exercised its discretion to reduce the fine on that basis given the seriousness of the offence and the need for general deterrence.
Penalty
The court fixed the appropriate fine at $160,000, reduced by 25% to reflect the guilty plea, resulting in a fine of $120,000. The court emphasised that the penalty must signal to officers who fail to comply with their obligations that significant punishment will follow.
Orders Made
- The offender was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- A fine of $120,000 was imposed (reflecting a 25% reduction from $160,000 for the guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)
- The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed
Key Takeaways
- Under s 27 of the Work Health and Safety Act 2011 (NSW), an officer's duty to exercise due diligence is active and ongoing. The District Court held that a director who asked only general questions about workplace operations, failed to review safety documentation, and took no steps to verify supervision arrangements had comprehensively breached that duty.
- Where an offender seeks a reduction in a fine on the basis of limited capacity to pay, the evidentiary onus rests on the offender. Bare assertions unsupported by documentary evidence will not discharge that onus.
- Parity between co-offenders remains a relevant consideration in Work Health and Safety Act sentencing, even where other potentially culpable individuals have not themselves been prosecuted.
- A significant fine may still be warranted notwithstanding mitigating factors such as a guilty plea, remorse, and cooperation, particularly where the objective seriousness of the offending is high and general deterrence is paramount.
- The court confirmed that the sentencing process must account for the victim's experience: a Victim Impact Statement from the injured worker was taken into account in determining the appropriate penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
- Corporations Act 2001 (Cth), s 9
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412