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District Court 11 July 2024

SafeWork NSW v Linda June Priest

[2024] NSWDC 276

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Linda June Priest [2024] NSWDC 276
Court: District Court of NSW
Date: 11 July 2024
Judge: Russell SC DCJ

Background

The defendant was a sole trader operating a small labour hire business that supplied workers to orchards and vineyards in regional NSW. She employed a farmhand and placed him with a host business, Integrated Agricultural Developments Pty Ltd (IAD), which operated a vineyard near Orange. The placement began in August 2020, and the worker was engaged in general farmhand duties.

On 1 June 2021, IAD directed the worker to assist with a controlled burn of blackberry bushes, a task involving quad bikes. He rode a quad bike onto the wall of an irrigation dam to monitor the fire. The bike tipped sideways, rolled down the dam wall, and trapped him beneath it. He sustained a fractured sacral spine and pelvis, requiring two weeks of hospital treatment.

None of IAD's quad bikes were fitted with operator protective devices (OPDs). Although IAD made helmets available, wearing them was not enforced, and the worker declined one offered to him on the day. The defendant's operations manager attended the site that morning but did not ask IAD what tasks the worker would be performing, and was not told quad bikes would be involved.

  • Whether the defendant, as a labour hire provider, breached her duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by failing to take reasonably practicable steps to ensure the health and safety of her worker, exposing him to a risk of death or serious injury (s 32 offence).
  • Whether the defendant breached her duty under s 46 of the WHS Act by failing to consult, cooperate, and coordinate activities with IAD, which held a concurrent work health and safety duty in relation to the same risk.
  • The appropriate sentence for each offence, including whether a fine or a conditional release order was warranted, and at what level the fines should be set having regard to objective seriousness, mitigating factors, and capacity to pay.

Decision

The defendant pleaded guilty to both offences. The court sentenced her on the basis of agreed facts. The s 32 offence carried a maximum fine of $353,430, and the s 46 offence a maximum of $23,460.

Russell SC DCJ assessed the s 32 offence as below mid-range in objective seriousness, noting that the defendant's business was small, her role was passive in that her operations manager attended the site without any knowledge that quad bikes would be used, and the failures were largely omissions rather than deliberate acts. Mitigating factors included the guilty plea, the defendant's age and health, her prior good character, her cooperation with investigators, and her remorse. However, the court gave meaningful weight to general deterrence, finding it important that labour hire businesses understand they cannot simply place workers with host employers and then disengage from safety responsibilities.

The court rejected a submission that a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate. The offences were not trivial and were not committed in extenuating circumstances. The court determined that a fine was necessary to reflect general deterrence, particularly in the context of the labour hire industry.

The court declined to apply the totality principle to reduce the combined penalties. It treated the two offences as distinct: the s 32 charge addressed specific steps the defendant should have taken to protect her worker, while the s 46 charge addressed her failure to fulfil a statutory obligation to consult and coordinate with IAD as a concurrent duty holder.

Orders Made

District Court Proceedings 2022/387532 (s 32 offence):
- Linda June Priest convicted.
- Fine of $8,500 imposed (base fine of $10,000, reduced by 15% for the guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Defendant to pay prosecutor's costs of $30,000.

District Court Proceedings 2022/387524 (s 46 offence):
- Linda June Priest convicted.
- Fine of $3,400 imposed (base fine of $4,000, reduced by 15% for the guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- No order for costs.

Key Takeaways

  • A labour hire business cannot discharge its WHS duty merely by placing a worker with a host employer. The District Court held that the duty under s 19(1) of the WHS Act required the defendant to make active inquiries about the nature of the work, the risks involved, and the adequacy of the host employer's safety systems, even where the defendant had no operational presence at the worksite.

  • Under s 46 of the WHS Act, where two parties hold concurrent duties in relation to the same risk, each must actively consult, cooperate, and coordinate with the other. Silence and inaction are not compliance.

  • General deterrence carries significant weight in WHS sentencing involving the labour hire sector. The court found a fine necessary to signal to labour hire operators that passivity regarding host employer safety arrangements constitutes a breach of statutory duty.

  • A conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not available as an alternative to a fine simply because a defendant has good character or limited means. The offences must be trivial or attended by extenuating circumstances, and neither condition was satisfied here.

  • Where two WHS offences arise from the same factual circumstances but are based on distinct statutory duties, the sentencing court may decline to apply the totality principle and instead impose separate penalties for each.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Integrated Agricultural Developments Pty Ltd [2024] NSWDC 243
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263; (2001) 109 IR 316