Citation: SafeWork NSW v PRW Services Pty Ltd; SafeWork NSW v Peter Whalan [2024] NSWDC 16
Court: District Court of New South Wales
Date: 13 February 2024
Judge: Russell SC DCJ
Background
On 19 November 2020, workers engaged by PRW Services Pty Ltd were carrying out roof rectification works at a site in Moorebank, NSW. A roof worker fell seven metres through an unsecured roof sheet to the ground below, sustaining serious injuries. The incident arose from a failure to properly secure roof sheets and to implement adequate fall-prevention controls.
SafeWork NSW prosecuted both the company (as a person conducting a business or undertaking, commonly called a "PCBU") and its officer, Peter Whalan. A PCBU is a person or entity that runs a business or undertaking and owes primary safety duties under the Work Health and Safety Act 2011 (NSW) (WHS Act). An officer of a PCBU owes a separate duty to exercise "due diligence" to ensure the PCBU meets its obligations.
Both defendants pleaded guilty. The proceedings before the District Court concerned sentencing only: determining the appropriate fines, having regard to objective seriousness, mitigating and aggravating factors, and the capacity of each defendant to pay.
Legal Issues
- What was the appropriate penalty for PRW Services as a PCBU that failed to comply with its primary duty under s 19 of the WHS Act, exposing a worker to a risk of death or serious injury contrary to s 32?
- What was the appropriate penalty for Peter Whalan as an officer who failed to exercise due diligence under s 27 of the WHS Act to ensure PRW's compliance with that primary duty?
- What discount, if any, should apply to reflect each defendant's early guilty plea?
- Whether either defendant lacked the financial capacity to pay an otherwise appropriate fine, warranting a reduction in penalty?
Decision
The court found the offences to be of moderate to serious objective gravity. The identified risk was well-recognised in the roofing industry: workers accessing or moving across a roof containing brittle, fragile, or insufficiently secured sheets without adequate fall-arrest systems. Reasonably practicable control measures were readily available and included site-specific risk assessments, safe work method statements, fall-arrest harnesses attached to anchor points, barriers around unsecured sheets, and adequate supervision and training.
Russell SC DCJ assessed the appropriate base fine for PRW at $500,000 (against a maximum of $1,766,130) and for Mr Whalan at $60,000 (against a maximum of $353,430). Each figure was then reduced by 25 percent to reflect the utilitarian value of the early guilty pleas, consistent with established principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
On the question of financial capacity, the court declined to reduce either penalty further. PRW no longer traded and Mr Whalan did not intend to revive it, so concerns about a crippling effect on an ongoing business did not arise. As for Mr Whalan personally, cross-examination of his bank records revealed regular wage payments from his new company, as well as substantial cash withdrawals that he ultimately acknowledged were largely spent on gambling. The court found he had adequate present income and resources to meet the fine, and noted his stated intention to return to stevedoring work with prospective earnings of approximately $120,000 gross per year.
Costs orders were also made against both defendants in favour of the prosecutor.
Orders Made
PRW Services Pty Ltd (proceedings 2022/346665):
- Convicted of the offence
- Fined $375,000 (base fine of $500,000, reduced by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Peter Whalan (proceedings 2022/346649):
- Convicted of the offence
- Fined $45,000 (base fine of $60,000, reduced by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Key Takeaways
- The District Court confirmed that both a PCBU and its individual officer can be separately convicted and fined arising from the same incident, each assessed on their own culpability and financial capacity.
- A 25% discount for an early guilty plea applied to both defendants, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and established appellate authority.
- Where a company has ceased trading and its officer does not intend to revive it, the court will not treat the absence of an ongoing business as a reason to reduce an otherwise appropriate fine.
- Financial capacity to pay requires genuine scrutiny: the court examined recent bank statements and cross-examined the individual defendant, finding that significant cash withdrawals (here, attributed to gambling) did not establish an inability to pay.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that 50% of each fine be paid to SafeWork NSW as prosecutor, reflecting the statutory regime applicable to work health and safety prosecutions.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51