Citation: SafeWork NSW v Miller Logistics Pty Ltd [2024] NSWDC 119
Court: District Court of New South Wales
Date: 18 April 2024
Judge(s): Russell SC DCJ
Background
Miller Logistics Pty Ltd operated a transport depot in Tamworth, trading as Doble Express Transport. On 4 November 2020, a truck driver employed by a third party was working on foot at the depot's loading and unloading area, assisting with a B-Double trailer. A forklift driven by another worker struck him, causing serious injuries.
SafeWork NSW prosecuted Miller under the Work Health and Safety Act 2011 (NSW) (WHS Act) for failing to comply with its primary duty of care as a person conducting a business or undertaking (PCBU), thereby exposing workers to a risk of death or serious injury. Miller contested the matter, and on 8 March 2024 the District Court found it guilty following a contested hearing (reported at [2024] NSWDC 58). This judgment deals with sentencing only.
By the time of sentencing, Miller Logistics was in liquidation and no longer operating. The maximum penalty for the offence was a fine of $1,766,130.
Legal Issues
- Where in the range of conduct covered by the WHS Act offence did Miller's conduct fall, and what was the appropriate assessment of objective seriousness?
- What weight should be given to general and specific deterrence in the circumstances?
- What aggravating and mitigating factors were relevant to the sentence?
- What fine was proportionate, given Miller's liquidation and inability to pay?
- Whether prosecution costs should be ordered.
Decision
The court assessed Miller's culpability as falling in the mid range of objective seriousness. The risk of collision between a forklift and a pedestrian worker was known to exist at other Miller depots, and ample guidance material alerted PCBUs to this hazard. The probability of such an incident occurring was significant, particularly in areas where forklift operators and pedestrians were working on separate tasks without awareness of each other. The potential consequences were death or serious injury, and the steps available to eliminate or minimise the risk were straightforward and involved little or no burden. Miller in fact implemented appropriate measures immediately after the incident, reinforcing that these steps were readily available beforehand.
Applying the sentencing principles from Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, the court emphasised that the seriousness of the conduct is measured by reference to the failure to take reasonably practicable steps, not merely by the probability that injury would result. The ease with which preventive measures could have been taken, and the severity of potential harm, both elevated culpability.
General deterrence was treated as a significant sentencing consideration. The court noted that both large and small employers must take WHS obligations seriously, and the community is entitled to expect compliance. Specific deterrence was not a relevant factor because Miller was in liquidation and had ceased business. The one mitigating factor identified was the absence of prior convictions. The substantial injury suffered by the worker was treated as an aggravating factor.
The court imposed a fine of $450,000, representing approximately 25% of the maximum penalty, consistent with the mid-range culpability finding. The court also ordered that 50% of the fine be paid to SafeWork NSW as the prosecutor, pursuant to the Fines Act 1996 (NSW). The question of capacity to pay was noted but not applied as a modifying factor, given the liquidation.
Orders Made
- Miller Logistics Pty Ltd convicted.
- Miller Logistics Pty Ltd ordered to pay a fine of $450,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW as prosecutor.
- Miller Logistics Pty Ltd ordered to pay the prosecutor's costs.
- The prosecutor's solicitor directed to send a copy of the judgment to the liquidator of Miller Logistics Pty Ltd.
Key Takeaways
- Mid-range culpability was established where the risk of forklift-pedestrian collision was known or ought to have been known, the consequences were potentially fatal, and the preventive measures available were simple and inexpensive to implement.
- Under the approach confirmed in Nash v Silver City Drilling, courts assess WHS offence seriousness by reference to the failure to take reasonably practicable steps, not the statistical likelihood of injury materialising. The severity of potential harm and ease of prevention are both central considerations.
- A fine of $450,000 (approximately 25% of the maximum) was imposed for a mid-range offence following conviction at trial, with no guilty plea discount available.
- General deterrence remains a significant sentencing factor in WHS prosecutions even where the offender is in liquidation and specific deterrence is inapplicable.
- The District Court directed that a copy of the judgment be sent to the liquidator, reflecting the practical reality that WHS penalties may need to be administered through insolvency processes.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), s 122
Cases:
- SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266