Citation: SafeWork NSW v JD Projects (NSW) Pty Ltd [2024] NSWDC 422
Court: District Court of New South Wales
Date: 16 September 2024
Judge: Scotting DCJ
Background
The offender, a construction company engaged as principal contractor for a demolition and four-storey building project in Crows Nest, faced sentencing after pleading guilty to a work health and safety offence. The charge arose from excavation work conducted alongside an adjoining occupied commercial building, which required careful management to avoid undermining its foundations.
The offender's site manager had been advised by geotechnical engineers that excavating the full length of a capping beam in one section, rather than in stages, was very risky and could damage the adjacent building. Despite this warning, the site manager proceeded with the full-length excavation in one go, having indicated the staged approach would take too long. Piles along the elevation adjoining the neighbouring building had also been incorrectly installed, poured below the level of the adjacent building's footings contrary to the structural plans.
The excavation caused significant cracking and structural damage to the neighbouring building. Twelve workers were exposed to a risk of death or serious injury as a result.
Legal Issues
- What was the appropriate sentence for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), being a failure to ensure the health and safety of workers under s 19(1), with a maximum penalty of 17,315 penalty units ($1,766,130)?
- How should objective seriousness, mitigating factors, and aggravating factors be weighed in arriving at an appropriate fine?
- What discount applied to reflect the guilty plea?
- Whether the offender's capacity to pay, given it was not currently trading, warranted a reduction in the fine?
Decision
Scotting DCJ assessed the objective seriousness of the offence as significant. Trained geotechnical engineers had attended the site and explicitly warned the site manager that single-section excavation was not safe and would risk damage to the adjacent building. The site manager nonetheless proceeded with that method to save time. The piles had also been incorrectly installed beforehand, compounding the risk. Twelve workers were exposed to a real risk of death or serious injury, and structural damage to the neighbouring building followed.
His Honour identified no prior convictions as a mitigating factor. The offender demonstrated remorse through its current director, Mr Mouawad, although the Court reduced the weight given to that remorse because Mr Mouawad had no involvement with the company at the time of the offence. The Court was satisfied the company had good prospects of rehabilitation given it was now under Mr Mouawad's management.
On capacity to pay, the Court noted the offender was not currently trading but observed that neither party raised limited financial capacity as a basis for reducing the fine. His Honour found that the objective seriousness of the offence and the need for general deterrence weighed against any reduction on financial grounds. The conduct of deliberately ignoring expert engineering advice to save time required a penalty that reflected that seriousness.
The Court applied a 25% discount to the fine for the utilitarian value of the guilty plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski. The starting point of $240,000 was reduced to $180,000. The Court also took into account a Form 1 offence (a related breach of s 19(2) of the Act concerning the duty to others at the workplace).
Orders Made
- The offender, JD Projects (NSW) Pty Ltd, was convicted.
- A fine of $180,000 was imposed (reflecting a 25% guilty plea discount from a starting point of $240,000).
- The offender was ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A principal contractor who proceeded with excavation work adjacent to an occupied building after receiving explicit warnings from geotechnical engineers that the proposed method was unsafe was found to have committed a serious breach of its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW).
- The need for general deterrence can outweigh limited capacity to pay, particularly where responsible workers ignored expert safety advice to save time on a construction schedule.
- Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, remorse expressed by a director who had no involvement in the company at the time of the offence carries reduced weight in mitigation.
- A 25% discount on penalty is available where a guilty plea reflects the utilitarian value of that plea and an indication of remorse, consistent with the principles in R v Thomson and Houlton and R v Borkowski.
- Where a Form 1 additional offence is presented alongside a principal offence under the Work Health and Safety Act 2011 (NSW), the court applies the guideline principles from Attorney General's Application No 1 of 2022 in weighing the overall penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Crimes (Sentencing Procedure) Act 1999, ss 21A(3)(i), 21A(3)(k), 22
- Fines Act 1996, ss 6, 122(2)
Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson and Houlton (2000) 49 NSWLR 383