Citation: SafeWork NSW v Stitt [2024] NSWDC 396
Court: District Court of New South Wales
Date: 2 September 2024
Judge: Scotting DCJ
Background
The defendant was a licensed builder operating as a sole trader undertaking residential renovation work in Sydney's Eastern Suburbs. In September 2019, he engaged workers to erect a mobile scaffold tower at a Point Piper property for flue installation work. The scaffold was erected to a height of 8.65m, with work platforms positioned more than 4m above ground level. None of the workers involved held a High Risk Work Licence (HRWL) for scaffolding, which the relevant regulations required for work at that height.
On 11 September 2019, two workers attended the property to dismantle the scaffold. During the process, one worker leaned on a horizontal brace being used as a handrail. That brace detached due to a faulty coupler that had been installed in the wrong orientation, causing the worker to fall approximately 5.75m to the neighbouring property. He suffered serious head injuries and died several days later.
The defendant had returned to the site on 9 September 2019 and observed that the scaffold had been erected to a height requiring a licensed scaffolder to dismantle it. Despite this knowledge, he instructed the unlicensed workers to proceed with the dismantling. SafeWork NSW prosecuted him under s 32 of the Work Health and Safety Act 2011. The verdict judgment (SafeWork NSW v Jason Stitt [2024] NSWDC 255) set out the findings of guilt; this judgment dealt with sentencing.
Legal Issues
- The appropriate sentence for a category 2 WHS offence involving the death of a worker, having regard to objective seriousness
- Whether mitigating factors, including remorse, rehabilitation prospects, absence of prior convictions, and cooperation with authorities, warranted a reduced penalty
- The defendant's financial capacity to pay a fine, and the extent to which limited capacity should reduce the penalty
- The weight to be given to general and specific deterrence in fixing the fine
Decision
The court identified several failures that exposed the deceased worker to the relevant risk. The defendant did not engage a licensed scaffolder, directed unlicensed workers to carry out scaffolding work beyond the permitted height threshold, failed to devise or enforce an adequate safe work method statement, provided no adequate instructions on correct scaffold assembly, and was absent from the site during both erection and dismantling. The court found these failures fell within the mid-range of objective seriousness.
On mitigating factors, the court accepted that the defendant had no prior convictions, had made changes to his work practices since the incident, and demonstrated some remorse. However, the court placed reduced weight on the expression of remorse because it came belatedly, after the verdict. The defendant had only acknowledged that he knew the scaffold was erected to an unsafe height after the court's findings were delivered.
Regarding financial capacity, the defendant operated a relatively small business, had suffered adverse impacts from COVID-19, and was repaying a loan from his parents following a substantial civil settlement. The court accepted limited capacity as a mitigating consideration but noted that a substantial fine remained warranted given the seriousness of the offence and the need for general deterrence. The costs of the proceedings, which were also ordered against the defendant, were themselves noted to be likely substantial.
The court imposed a fine of $100,000, representing a significant discount from the $300,000 maximum, reflecting the mitigating factors in their totality while maintaining a meaningful deterrent effect.
Orders Made
- The defendant was convicted of an offence under s 32 of the Work Health and Safety Act 2011
- A fine of $100,000 was imposed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)
- The defendant is to pay the prosecutor's costs of the proceedings as agreed or assessed
Key Takeaways
- A licensed builder who knowingly instructs unlicensed workers to dismantle a scaffold erected beyond the height threshold permitted for unlicensed work can be convicted under s 32 of the Work Health and Safety Act 2011, even where a contributing cause of the incident was a faulty equipment component.
- Under the WHS sentencing framework, multiple concurrent failures, including absence from site, inadequate instructions, and breach of licensing requirements, collectively inform the objective seriousness of the offence, which the District Court placed in the mid-range.
- Remorse expressed only after a finding of guilt at trial will be accepted as a mitigating factor, but courts will assign it reduced weight compared with earlier and more timely acknowledgments of wrongdoing.
- Limited financial capacity can reduce the quantum of a fine to some extent, but the Fines Act 1996 does not require courts to calibrate fines solely to an offender's means; the seriousness of the offence and general deterrence remain primary considerations.
- The absence of prior convictions, good rehabilitation prospects, and operational changes made after the incident are relevant mitigating factors in WHS sentencing, though none of these factors operates to override the need for a penalty that reflects the gravity of a fatal workplace incident.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- SafeWork NSW v Jason Stitt [2024] NSWDC 255 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Youkhana [2004] NSWCCA 412