Citation: SafeWork NSW v Rahme Civil Pty Ltd; SafeWork NSW v Rabih Rahme [2024] NSWDC 561
Court: District Court of New South Wales
Date: 28 November 2024
Judge: Strathdee DCJ
Background
SafeWork NSW prosecuted a civil construction company and its director for contraventions of s 32 of the Work Health and Safety Act 2011 (NSW). The offences involved a failure to ensure, so far as was reasonably practicable, that workers were not exposed to risks to their health and safety, in circumstances where the risk of death or serious injury was present.
The liability trial ran in May 2024. Neither defendant appeared at that trial, and the court entered pleas of not guilty on their behalf. On 20 June 2024, Strathdee DCJ convicted both defendants and published reasons in a separate judgment ([2024] NSWDC 231). The sentencing hearing proceeded on 11 October 2024, at which point the defendants were represented by Senior Counsel.
A victim impact statement was tendered by the prosecutor, and the defendants relied on an affidavit from the individual defendant (including financial documents), as well as two bundles of character references.
Legal Issues
- Where on the scale of objective seriousness did the offending fall, by reference to the maximum penalty under the WHS Act?
- What weight should be given to mitigating and aggravating factors, including the defendants' absence from the liability trial and the financial circumstances of the corporate defendant?
- What discount, if any, should apply under s 6 of the Fines Act 1996 (NSW) in light of the defendants' financial position?
- How should the requirement for general and specific deterrence be balanced against subjective mitigating factors?
- What costs orders were appropriate against the defendants?
Decision
Objective seriousness. The court assessed the offending as serious under s 32 of the WHS Act, applying the framework from Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. That framework requires consideration of the potential consequences of the risk (which may range from mild to catastrophic), the availability and ease of risk-mitigation steps, and what the defendants knew or ought to have known. The court emphasised that it was assessing the seriousness of the risk itself, not the fact that harm ultimately materialised.
Sentencing approach. The court applied the "instinctive synthesis" methodology, as confirmed in Muldrock v The Queen (2011) 244 CLR 120 and Markarian v The Queen (2005) 228 CLR 357. That approach requires the court to identify all relevant factors, discuss their significance, and arrive at a global sentencing judgment without mechanically attributing precise weight to each factor. Subjective factors were treated as subsidiary to the objective seriousness of the offending.
Fines Act discretion. The court accepted that the defendants' financial circumstances warranted some leniency. For the corporate defendant, the assessed fine of $500,000 was reduced by 20% to $400,000 under s 6 of the Fines Act. For the individual defendant, the assessed fine of $100,000 was reduced by 50% to $50,000, reflecting greater financial difficulty. The court noted that the defendants' unexplained absence from the liability trial, combined with the nature of the offending, required that the fines reflect the seriousness of the WHS breaches and satisfy general deterrence.
Costs. The court reiterated that costs orders in this context are compensatory rather than punitive, following Latoudis v Casey (1990) 170 CLR 534. The court took the costs liability into account when setting the monetary penalties, and also had regard to the defendants' own costs flowing from the breach, consistent with Environmental Protection Authority v Barnes [2006] NSWCCA 246.
Orders Made
Corporate defendant (proceedings no. 2022/376641):
- Convicted of the offence
- Assessed fine of $500,000, reduced by 20% under s 6 of the Fines Act 1996 (NSW) to a fine of $400,000
- 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, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW)
Individual defendant (proceedings no. 2022/3766664):
- Convicted of the offence
- Assessed fine of $100,000, reduced by 50% under s 6 of the Fines Act 1996 (NSW) to a fine of $50,000
- 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, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW)
Key Takeaways
- Under the WHS Act, the duty to ensure worker safety as far as reasonably practicable is non-delegable; both the corporate entity and its individual officer were convicted and fined for the same category of breach.
- Objective seriousness under s 32 of the WHS Act is assessed by reference to the potential severity of harm, the foreseeability of the risk, and whether mitigation steps were available and straightforward, not merely by the probability that harm would occur.
- A defendant's unexplained absence from a liability trial, while not an express aggravating factor, was noted by the District Court as relevant context when calibrating whether leniency was appropriate.
- Financial hardship can support a reduction in the quantum of a Fines Act penalty under s 6, but the court's reduction must remain consistent with the requirements of general deterrence and the overall seriousness of WHS offending.
- Costs orders against convicted WHS defendants are compensatory in nature and may be taken into account by the sentencing court when setting the level of any monetary penalty.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Criminal Procedure Act 1986 (NSW), s 257B
Cases:
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- R v Cage [2006] NSWCCA 304
- R v MA (2004) 145 A Crim R 434; [