Citation: SafeWork NSW v State of New South Wales (Department of Communities and Justice, Corrective Services NSW) [2024] NSWDC 606
Court: District Court of New South Wales
Date: 20 December 2024
Judge: Strathdee DCJ
Background
The defendant, Corrective Services NSW (CSNSW), operates 34 correctional centres across New South Wales. On 19 December 2020, two inmates at the Mid North Coast Correctional Centre (MNCCC) at Aldavilla ambushed two corrections officers, identified in the judgment as COF and COL, by rushing them into the officers' workstation.
COL managed to escape. COF was held hostage for more than six hours, during which he was subjected to serious physical violence and torture. He sustained multiple very serious injuries, was hospitalised, and ultimately transferred to the Burns Unit at Royal North Shore Hospital. COL also sustained serious injuries and received treatment at Kempsey Hospital. Neither officer has returned to work, and both prognoses remain unclear.
SafeWork NSW prosecuted CSNSW for failing to comply with its primary duty under the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure the health and safety of its workers, so far as reasonably practicable. CSNSW pleaded guilty to one charge under s 32 of the WHS Act, which carries a maximum penalty for a body corporate of $1,766,130.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence and all relevant sentencing factors?
- What discount should apply for the utilitarian value of the guilty plea?
- What weight should be given to mitigating factors including remediation, remorse, and co-operation with the regulator?
- How should the defendant's prior convictions under work health and safety legislation be treated?
- Whether costs should be awarded to the prosecutor, and on what basis.
Decision
Objective seriousness and the nature of the breach
The court found that CSNSW failed to take reasonably practicable measures to minimise a foreseeable risk of death or serious injury to its workers from inmate violence. The specific failures included: not enforcing the use of airlock doors when staff accessed inmate areas; failing to ensure hazardous chemicals (including undiluted Fincol) were stored securely; and failing to ensure prison-made weapons, once detected, were secured or disposed of to prevent inmate access. CSNSW itself accepted that the risk was foreseeable and that it could not be eliminated entirely, only minimised.
Mitigating factors
The court accepted several mitigating factors in favour of CSNSW. These included demonstrated remorse and acceptance of responsibility, co-operation with SafeWork NSW during its investigations, and significant remedial steps taken following the incident. The court also accepted that CSNSW was unlikely to reoffend, given the substantial changes implemented to its safety systems. The defendant's prior convictions under work health and safety law were treated as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), but the court accepted that, in the context of operating 34 correctional centres across the state, the prior record did not amount to a significant one and afforded the defendant some leniency accordingly.
Guilty plea discount
The court applied a 25% discount to the fine to reflect the utilitarian value of the guilty plea, entered shortly after the Amended Summons was filed. The court applied the principles from R v Thomson; R v Houlton (2000) 49 NSWLR 383 and the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Costs
The court confirmed, consistent with Latoudis v Casey (1990) 170 CLR 534, that costs orders in criminal proceedings are compensatory rather than punitive in nature, and ordered CSNSW to pay the prosecutor's costs as agreed or assessed.
Orders Made
- CSNSW is convicted of the offence under s 32 of the WHS Act.
- A base fine of $800,000 was assessed as appropriate; reduced by 25% for the guilty plea to a fine of $600,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to SafeWork NSW as prosecutor.
- CSNSW is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- The District Court confirmed that a public authority operating correctional facilities carries the same non-delegable, positive duty under s 19(1) of the WHS Act as any other person conducting a business or undertaking, requiring it to identify, and so far as reasonably practicable eliminate or minimise, risks to workers from inmate violence.
- Even where a risk cannot be eliminated entirely, a failure to implement reasonably practicable minimisation measures, such as enforcing secure storage of weapons and chemicals and enforcing safe entry procedures, can found a Category 2 WHS offence.
- A 25% guilty plea discount was applied where the plea was entered shortly after the Amended Summons was filed, consistent with the principles in R v Thomson; R v Houlton.
- Prior convictions under work health and safety legislation are an aggravating factor, but their weight can be moderated where the sentencing court finds that, in the context of the scale and complexity of the defendant's undertaking, the record is not a significant one.
- Costs orders in WHS prosecutions are compensatory in character, not punitive, reflecting the principle in Latoudis v Casey, and 50% of the fine imposed was directed to the prosecutor by operation of s 122(2) of the Fines Act 1996 (NSW).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 31, 32, 245(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122
Cases
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82