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Court of Criminal Appeal 6 May 2024

Urban Field Group Pty Ltd v SafeWork NSW

[2024] NSWCCA 62

Other
CRIME APPEALS APPEAL AGAINST SENTENCE FACT FINDING IN CIRCUMSTANTIAL CASE S RELEVANT FACTORS ON SENTENCE S PECIFIC DETERRENCE

Citation: Urban Field Group Pty Ltd v SafeWork NSW [2024] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 6 May 2024
Judges: Adamson JA, Wright J (principal judgment), Sweeney J

Background

The appellant, Urban Field Group Pty Ltd, was the principal contractor on a residential construction project at Pendle Hill, NSW. It had engaged a subcontractor, Abresham Pty Ltd, to carry out painting and preparation work on site. On 28 August 2019, an Abresham employee, Mr Hussaini, was directed to grind concrete on ceilings, soffits and walls using a grinder and a stepladder. It was his first day on site, he had received no proper induction, and the stepladder was an inappropriate tool for the task.

At around 12.30pm, a co-worker heard a loud noise and found Mr Hussaini lying face down and unconscious with the ladder on top of him. Mr Hussaini died from severe head injuries.

Urban Field pleaded guilty on 18 July 2022 to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty of care under s 19(1) of that Act. The dispute at the sentencing hearing centred on one factual issue: whether Urban Field's breach of duty caused, or was otherwise the manifestation of the risk that led to, Mr Hussaini's death. On 18 November 2022, Scotting DCJ convicted Urban Field and imposed a fine of $400,000 (reflecting a 20% guilty plea discount from an undiscounted amount at the top of the comparable range). Urban Field then appealed to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in finding, beyond reasonable doubt, that Mr Hussaini's death resulted from a fall from the ladder while working at height (i.e. that the death was a manifestation of the risk created by the breach of duty).
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offence or engaged in impermissible double counting.
  • Whether the sentencing judge gave specific deterrence impermissible primacy as a sentencing factor.
  • Whether the fine of $400,000 was manifestly excessive by reference to comparable cases.

Decision

Ground 1: Fact-finding on causation

Wright J (with whom Adamson JA and Sweeney J agreed) rejected the argument that the sentencing judge erred in finding that Mr Hussaini's death was caused by a fall from the ladder. The court noted this was a circumstantial case, and the applicable principle is that where none of the circumstances relied upon is indispensable, each individual circumstance need not be proved beyond reasonable doubt. The circumstances must be considered as a whole, not piecemeal. Applying that approach, the sentencing judge's finding was open on the evidence and disclosed no error of law or application of wrong principle.

Ground 2(a): Objective seriousness and double counting

The court found no error in the sentencing judge's assessment of objective seriousness. The relevant circumstances of the specific offence were taken into account, and there was no impermissible double counting in the sentencing process.

Ground 2(b): Specific deterrence

The court confirmed that the weight to be given to specific deterrence as a sentencing factor is quintessentially a matter for the sentencing judge. Urban Field had not demonstrated that the sentencing judge elevated specific deterrence to an impermissible primary position or applied any wrong principle in considering it.

Ground 2(c): Manifest excess

Wright J examined comparable sentences, identifying a relevant range of fines of $300,000 to $500,000 for Category 2 WHS Act offences carrying a maximum of $1.5 million. The court was careful to note that this range was a yardstick only, not a definitive or binding range. Having regard to the circumstances of the case and sentencing principles, the court could not conclude that the $400,000 fine was unreasonable, plainly unjust, or so far outside the available range as to demonstrate error. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In a circumstantial sentencing fact-finding exercise, where no single circumstance is indispensable to the conclusion, each individual circumstance need not be proved beyond reasonable doubt. The circumstances must be assessed as a whole.
  • The weight afforded to specific deterrence in sentencing is quintessentially a matter for the sentencing judge. An appellant must demonstrate that the factor was given impermissible primacy, not merely that a different weighting was open.
  • Comparable cases in WHS Act sentencing serve as a yardstick against which to test a sentence, rather than as a definitive range binding the sentencing court.
  • No error was established in the sentencing judge's assessment of objective seriousness or in his approach to the circumstances of the offence, including the death of a worker on his first day on site without proper induction or supervision.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a fine of $400,000 (post-discount) for a Category 2 WHS Act offence resulting in a worker's death was within the range of sentences reasonably available on the facts.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Criminal Appeal Act 1912 (NSW), ss 5AA(1), 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e), 32
- Fines Act 1996 (NSW), s 6

Cases
- SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575 (sentence below)
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Ahmad v R [2021] NSWCCA 30
- Carbone v R (No 2) [2024] NSWCCA 7
- Greentree v R [2018] NSWCCA 227
- Hunt v R [2017] NSWCCA 305
- Davidson v R [2009] NSWCCA 150
- Magro v R [2020] NSWCCA 25
- Mulato v R [2006] NSWCCA 282