Citation: SafeWork NSW v Karl O'Sullivan [2024] NSWDC 142
Court: District Court of New South Wales
Date: 1 May 2024
Judge: Russell SC DCJ
Background
The defendant was employed as a yard supervisor and forklift operator at a timber distribution warehouse in St Marys, New South Wales. On 1 February 2021, he left a 7.6-tonne Nissan forklift unattended on a sloped driveway without applying the handbrake, lowering the tynes, chocking the wheels, turning off the engine, or positioning the steer wheels to arrest movement. The forklift rolled down the slope and crushed a truck driver, Mr Baljinder Singh, who was strapping his load in the loading bay below. Mr Singh, aged 40 and survived by his wife and three children, suffered fatal injuries.
The defendant was charged separately under the Crimes Act 1900 (NSW) with dangerous driving occasioning death, for which he had already been convicted and sentenced to an intensive correction order (ICO) by another court. He was also charged by SafeWork NSW with failing, as a worker, to take reasonable care that his acts or omissions did not adversely affect the health and safety of others, contrary to sections 28(b) and 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The maximum penalty for that offence is a fine of $176,460.
The defendant pleaded guilty to the WHS Act charge. This sentencing judgment addressed the appropriate penalty, taking into account the earlier criminal sentence and the principle of totality.
Legal Issues
- Whether the defendant breached his duty under section 28(b) of the WHS Act by failing to take reasonable precautions before leaving the forklift unattended
- The appropriate level of fine, having regard to the objective seriousness of the offence, mitigating factors, and the defendant's capacity to pay
- Whether the principle of totality required a reduction in the fine, given the defendant had already been sentenced to an ICO for dangerous driving occasioning death arising from the same incident
- Whether the early guilty plea warranted a discount on the penalty
Decision
The court found that the defendant had failed to take six available and reasonable precautions: parking on level ground, orienting the forklift horizontally to the slope, angling the steer wheels, applying the park brake, lowering the tynes, and chocking the rear wheels. These failures collectively exposed Mr Singh to the risk of death or serious injury. The court accepted that the offence was serious, occurring in a workplace where the interaction of forklifts and pedestrian workers was a known and foreseeable hazard.
On totality, the court noted that this appeared to be the first case in New South Wales where a defendant had been sentenced under both the Crimes Act and the WHS Act for what was, in substance, a single event. The ICO imposed for the dangerous driving charge had already significantly restricted the defendant's liberty and constituted a meaningful punishment of a higher order than any penalty available under the WHS Act. Applying the totality principle to avoid double punishment, the court reduced the fine that would otherwise have been imposed.
The court assessed the appropriate fine, absent the prior sentence, at $10,000. That figure was then reduced by 25 percent to reflect the defendant's early plea of guilty, resulting in a fine of $7,500. The court also ordered the defendant to pay the prosecutor's costs and directed that 50 percent of the fine be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996 (NSW).
Orders Made
- The defendant was convicted on 17 April 2024
- Fined $7,500 (reflecting a 25% discount for early guilty plea from a base fine of $10,000)
- 50% of the fine ordered to be paid to the prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW)
- The defendant ordered to pay the prosecutor's costs
Key Takeaways
- The District Court confirmed that a worker holding supervisory responsibilities can be personally prosecuted under section 28(b) of the WHS Act for failing to take reasonable precautions when operating plant, independent of any liability attaching to their employer
- Where a defendant has already been sentenced under the Crimes Act for the same factual event, the principle of totality applies and requires the sentencing court to reduce the WHS Act penalty to avoid double punishment, even where the two offences carry different types of penalties (imprisonment versus fine)
- Under the WHS Act, the court can only impose a fine on an individual worker for a category 2 offence under section 32, meaning imprisonment is not available and the penalty is necessarily of a lower order than a criminal sentence
- A 25% discount on the fine was applied for an early guilty plea, consistent with the approach taken in criminal sentencing generally
- Sufficient mitigating weight was given to the ICO already served, with the court expressly noting that "but for" that sentence, the fine would have been substantially higher
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 28, 32, 171
- Crimes Act 1900 (NSW), ss 18, 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Hesketh v R [2021] NSWCCA; (2021) 106 NSWLR 200
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51