Citation: SafeWork NSW v Woods [2023] NSWDC 510
Court: District Court of New South Wales
Date: 22 November 2023
Judge: Scotting DCJ
Background
The offender was a director of Q.A. Building Pty Ltd, a small business operating a Spanline franchise that designed and built outdoor structures including patios and carports. In August 2020, the company engaged an experienced carpenter as a subcontractor to install a new roof over a residential veranda in Boambee East. The subcontractor was not informed until he arrived on site that the scope of work had been expanded to include demolition of the existing roof.
The veranda roof sat approximately six metres above the ground. No scaffolding or work platform was in place, and the edge of the roof was unguarded. While removing roof sheets, the subcontractor stood on a rotting timber batten at the roof's edge, which gave way. He fell approximately six metres to a concrete path below, suffering a compound femur fracture, a fractured eye socket and cheek, a torn shoulder ligament, and other injuries.
SafeWork NSW prosecuted the offender personally in his capacity as a director of the company. The offender pleaded guilty to failing to comply with his health and safety duty under s 27 of the Work Health and Safety Act 2011 (NSW), thereby exposing the subcontractor to a risk of death or serious injury, contrary to s 32 of that Act.
Legal Issues
- What was the appropriate sentence for a director convicted of a Category 2 WHS offence under s 32 of the Work Health and Safety Act 2011?
- How should the court assess the objective seriousness of the offending?
- What weight should be given to mitigating factors, including the guilty plea, remorse, mental health, rehabilitation steps, and the financial impact of a fine on the offender's family?
- Was a Work Health and Safety Undertaking under s 239 of the Act an appropriate sentencing outcome in place of a monetary fine?
Decision
The court assessed the objective seriousness of the offence as significant. The risk of a fall from height at an unguarded, elevated work site was obvious and foreseeable. The offender had a positive obligation as a director to ensure adequate resources and systems were in place, including site-specific safe work method statements and scaffolding. None of those measures were provided, and the subcontractor was not even told scaffolding could be made available.
In mitigation, the court accepted a range of factors in the offender's favour. These included his guilty plea, his genuine remorse, his lack of prior convictions, his good prospects of rehabilitation, and the substantial remedial steps taken by the company after the incident. The court also had regard to psychiatric evidence, which indicated the offender was suffering from a significant mental health condition connected to the incident and its aftermath.
The court weighed the purposes of sentencing carefully, noting that a substantial fine would bear disproportionately on the offender's wife and dependent child and would divert funds away from necessary psychiatric treatment. The court concluded that the statutory purposes of sentencing had been substantially achieved through the offender's rehabilitation steps, his mental health circumstances, and the conditions that would be attached to a sentencing undertaking.
Rather than imposing a fine, the court convicted the offender and released him on a Work Health and Safety Undertaking under s 239 of the Act for a period of two years, with conditions including mandatory psychiatric and psychological treatment. The adjournment to 21 November 2025 was designed to hold the offender accountable while supporting his return to the workforce.
Orders Made
- The offender was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- Proceedings adjourned to 21 November 2025, with the offender released on a Work Health and Safety Undertaking under s 239 of the Act on the following conditions:
- Appear before the court if called upon during the adjournment period.
- Be of good behaviour and not commit any offence against the Act during the adjournment.
- Seek and engage with treatment from a psychiatrist and psychologist for his mental health condition throughout the adjournment, including taking prescribed medication as directed.
- Provide evidence to SafeWork NSW of psychiatric and psychological treatment on or before 22 February 2024.
- Provide evidence to the court of ongoing treatment on or before 14 November 2025.
- Notify the District Court Registrar at the Downing Centre of any change of address during the undertaking period.
- The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed.
Key Takeaways
- A director's personal liability under s 27 of the Work Health and Safety Act 2011 extends to ensuring adequate resources, site-specific safety documentation, and fall-prevention measures are in place before work commences, not merely to having generic systems available.
- The District Court confirmed that a Work Health and Safety Undertaking under s 239 of the Act can be an appropriate sentencing outcome for a director, even where the objective seriousness of the offence is significant, where strong mitigating factors and the purposes of sentencing support that approach.
- Mental health evidence was treated as a relevant sentencing consideration, both in reducing the offender's moral culpability and in justifying conditions attached to the undertaking that required ongoing psychiatric care.
- Expanding the scope of work on site without updating safety documentation, providing a site-specific safe work method statement, or informing the worker that scaffolding was available constituted distinct failures that the court regarded as aggravating the objective seriousness of the offending.
- Post-incident remediation, including developing Spanline-specific WHS documentation, conducting toolbox talks, and subscribing to industry training programs, was accepted as evidence of genuine rehabilitation and weighed in the offender's favour on sentence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 27, 32, 239
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412