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Court of Criminal Appeal 12 February 2024

Saunders Civilbuild Pty Ltd v SafeWork New South Wales (No 2)

[2024] NSWCCA 3

Other
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Saunders Civilbuild Pty Ltd v SafeWork New South Wales (No 2) [2024] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 12 February 2024
Judges: Walton J, McNaughton J

Background

A construction company was convicted in the District Court in November 2021 of a work health and safety offence under s 32 of the Work Health and Safety Act 2011 (NSW), specifically a failure to comply with a health and safety duty that exposed individuals to a risk of death or serious injury. At sentencing in May 2022, the District Court imposed a fine of $375,000 and made an Adverse Publicity Order requiring the company to publish a notice describing the offence, its consequences, and the penalty in two industry publications.

The company appealed against both conviction and sentence. The Court of Criminal Appeal dismissed the conviction appeal in October 2023 but found that the primary judge had erred in relation to two particular findings, known as the "Fall Protection Findings," which concerned sub-particulars 17(a)(iii) and (iv) of the prosecution summons. Those findings were held not to have been reasonably practicable measures in the circumstances of the incident.

Following the conviction appeal, the company pursued only the sentence appeal, and only on the narrow question of whether the Adverse Publicity Order should be amended to remove the Fall Protection Findings from the published notice. SafeWork NSW did not oppose the orders sought.

  • Whether the Adverse Publicity Order, as originally formulated, should be quashed given that certain underlying findings were not sustained on the conviction appeal.
  • Whether a substituted Adverse Publicity Order should be made that reflects only the offence as it was proven following the appeal.

Decision

The Court's analysis was brief and focused. Under s 236(1) of the Work Health and Safety Act 2011 (NSW), an Adverse Publicity Order requires an offender to publicise the "offence" and its consequences. The Court held that this necessarily means the offence only to the extent it was proven. Because the Fall Protection Findings had been successfully challenged on the conviction appeal, those findings could no longer properly form part of the published notice.

The Court found it obvious that the original Adverse Publicity Order could not stand in its existing form. The primary judge's order was quashed and replaced with a substituted order incorporating an amended Adverse Publicity Notice that excluded the Fall Protection Findings. All other sentencing orders, including the fine of $375,000 and the direction that 50% of the fine be paid to SafeWork NSW, were confirmed and left undisturbed.

Orders Made

  • All sentencing orders made by Scotting DCJ on 18 May 2022, other than the Adverse Publicity Order, are confirmed, including the $375,000 fine and the order that 50% of the fine be paid to SafeWork NSW under s 122(2) of the Fines Act 1996 (NSW).
  • The original Adverse Publicity Order is quashed.
  • A substituted Adverse Publicity Order is made requiring the company to publish an amended Adverse Publicity Notice in two consecutive editions of each of The Master Builders Association Magazine and The Civil Contractors Federation Bulletin, on or before 28 February 2024, or in the first editions published after that date.
  • The amended notice must be no smaller than a full page (or at least 28cm x 5 columns), in 12-point Times New Roman or equivalent, and in full colour.
  • The company must advise SafeWork NSW, with evidence of compliance, by 5:00pm on 28 February 2024.

Key Takeaways

  • Under s 236(1) of the Work Health and Safety Act 2011 (NSW), an Adverse Publicity Order must reflect the offence only to the extent it was actually proven. Where a conviction appeal partially succeeds in displacing underlying findings, the terms of any existing Adverse Publicity Order are affected accordingly.
  • The Court of Criminal Appeal confirmed that a successful challenge on conviction grounds can have direct consequences for sentencing orders beyond a fine, including ancillary orders such as Adverse Publicity Orders.
  • In dismissing the sentence appeal in all other respects, the Court left the $375,000 fine and all remaining sentencing orders entirely intact, underscoring that the sentence appeal was confined strictly to the Adverse Publicity Order.
  • Where a notice of appeal incorporates both conviction and sentence grounds but sentence is not pursued at the conviction hearing, the Court may grant liberty to apply on sentence at a later stage.
  • No error was found in the primary judge's reasoning for making the Adverse Publicity Order in the first place. The quashing flowed solely from the narrowed findings after the conviction appeal, not from any error in the exercise of the sentencing discretion itself.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 32, 236
- Criminal Appeal Act 1912 (NSW), s 6AA
- Fines Act 1996 (NSW), s 122

Cases
- SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (conviction)
- SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163 (sentence)
- Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 (conviction appeal)