Citation: SafeWork NSW v Avant Stone Pty Ltd [2024] NSWDC 507
Court: District Court of New South Wales
Date: 31 October 2024
Judge: Russell SC DCJ
Background
The defendant, a stone slab supply company, operated a warehouse and showroom in Beresfield, NSW, where imported marble and granite slabs were stored on A-frame racks and moved using a five-tonne overhead travelling crane. The warehouse had only been operating for nine days when the incident occurred. On 20 August 2022, a warehouse employee was found crushed under two stone slabs, each weighing approximately 315 kilograms, and was declared dead at the scene.
At the time of the incident, only two employees were present. While one attended to a client-related task, the deceased was moving stone slabs using the overhead crane. There were no direct witnesses to the moment the slabs fell. The company had ten employees in total and an annual turnover of approximately $4 million as at 30 June 2022.
SafeWork NSW prosecuted the company for failing to comply with its work health and safety duty under the Work Health and Safety Act 2011 (NSW), thereby exposing the deceased worker to a risk of death or serious injury. The company pleaded guilty.
Legal Issues
- Whether the company breached its duty under s 19(1) of the WHS Act as a person conducting a business or undertaking, contrary to s 32 of that Act
- What constituted the appropriate level of objective seriousness for the offence
- What mitigating and aggravating factors applied to the sentence
- What weight to give an early guilty plea
- What fine was appropriate, having regard to the maximum penalty, the defendant's size, and the need for general and specific deterrence
- Whether prosecution costs should be ordered
Decision
The court recorded a conviction on the guilty plea. The risk identified was that workers could suffer serious injury or death from being struck or crushed by a stone slab being unloaded by the overhead crane. The defendant failed to take reasonably practicable measures including: providing adequate racking with safety bars to prevent slabs tipping; developing documented job safety analyses or safe work method statements for lifting operations; implementing a supervisory or spotting system during crane operations; and providing appropriate training.
Russell SC DCJ assessed the objective seriousness of the offence and applied the sentencing purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, including general deterrence, which carries particular weight in workplace safety prosecutions. The court noted the absence of any documented safety system, the absence of supervision or spotting when slabs were being moved, and the lack of safety bars on the A-frames as compounding the gravity of the failure.
In mitigation, the court took into account the company's early guilty plea, its cooperation with prosecutors, and its acknowledgment that its conduct caused the fatality. A 25% discount was applied to the fine to reflect the early plea, consistent with s 22 of the Crimes (Sentencing Procedure) Act 1999. No submission was made about capacity to pay, so that issue did not arise, though the court noted the relatively small size of the company as a relevant factor in fixing the fine.
The court set a base fine of $600,000, reduced to $450,000 after the plea discount. The maximum available penalty for the offence was $1,860,843. Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor (SafeWork NSW).
Orders Made
- Avant Stone Pty Ltd convicted
- Fine of $450,000 imposed (reduced from a base of $600,000 by 25% for early guilty plea)
- 50% of the fine directed to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Avant Stone Pty Ltd ordered to pay the prosecutor's costs
Key Takeaways
- A person conducting a business or undertaking can be convicted under ss 19 and 32 of the WHS Act where it fails to implement reasonably practicable measures, including documented safe work procedures, adequate racking systems, and supervisory controls, and that failure exposes a worker to a fatal risk.
- General deterrence carries significant weight in WHS sentencing, and a substantial fine may remain appropriate even where the defendant is a small business and cooperated fully with investigators.
- An early guilty plea attracted a 25% discount on the base fine, consistent with the requirements of s 22 of the Crimes (Sentencing Procedure) Act 1999.
- Under s 122(2) of the Fines Act 1996, the court directed that 50% of the fine be paid to the prosecuting authority, SafeWork NSW, which is a standard feature of WHS prosecutions in this jurisdiction.
- Objective seriousness was assessed by reference to the nature and foreseeability of the risk, the availability of practicable safety measures that were not taken, and the fatal outcome, with the company's small size treated as a relevant but not determinative consideration in calibrating the penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 54, 55, 203, 219
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- 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
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432