Citation: SafeWork NSW v Burke [2025] NSWDC 29
Court: District Court of New South Wales
Date: 24 February 2025
Judge(s): Scotting DCJ
Background
The offender, Bede Burke, was a partner in the Glenwarrie Partnership, which operated an egg farm near Tamworth. He and his wife Narelle Burke managed the farm's day-to-day operations and employed a number of farm hands, including Desmond Saunders, who had worked for the partnership for over 30 years.
On 15 January 2020, the offender directed Mr Saunders and another worker, John Wood, to investigate a slipping belt on a manure conveyor. The two men were elevated to approximately 2.5 metres above the ground by standing on an unsecured pallet lifted by a forklift. No safety harness, fall arrest system, or proper work platform was used. Critically, the conveyor was not isolated before work began, and it continued to be switched on and off by a third worker operating a control panel some distance away.
While working at height, Mr Saunders momentarily lost his balance and his hand was drawn into the moving conveyor belt. He sustained serious lacerations and an open fracture to his left hand, underwent multiple surgeries, and was left with permanent impairment. He did not return to work, and has since died. The incident was not reported to SafeWork until six days later, when a family member of Mr Saunders made the notification.
Legal Issues
- Whether the offender breached his duty as a person conducting a business under s 19(1) of the Work Health and Safety Act 2011, exposing a worker to a risk of death or serious injury (prosecuted under s 32)
- Whether the offender failed to immediately notify the Regulator of a notifiable incident, in breach of s 38 of the Act
- Whether the offender failed to preserve the incident site, in breach of s 39 of the Act
- The appropriate penalties, having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, and the totality principle
Decision
The offender pleaded guilty to all three charges. On the primary offence under s 32, Scotting DCJ assessed the objective seriousness as falling in the low to mid range. A number of serious risk factors were present: work at height without fall protection, failure to isolate the conveyor before maintenance, the absence of appropriate lock-out and tag-out procedures, and the use of an unsecured pallet instead of the purpose-built work platform that was available on site. Relevant Australian Standards and SafeWork codes of practice, which were all available at the time, clearly required isolation before conveyor maintenance. The court found the offender's conduct departed significantly from what was required.
In mitigation, the court noted the offender had no prior convictions, demonstrated genuine remorse, cooperated with SafeWork's investigation, and had good prospects of rehabilitation. He did not contest a capacity to pay the fine. General deterrence carried significant weight in the sentencing exercise, given the need to send a message to those who conduct businesses in similar industries. The court applied a 25% discount to the fine on the primary offence to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski.
For the notification and site preservation offences under ss 38 and 39, the court calculated notional fines of $6,000 each before the plea discount, but then reduced each to nil under the totality principle, recording convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999 without imposing further financial penalties.
Orders Made
- The offender was convicted on all three charges.
- A fine of $30,000 was imposed for the s 32 offence (reduced from $40,000 by a 25% guilty plea discount).
- No further penalty was imposed for the s 38 or s 39 offences, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, on totality grounds.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- Costs were deferred pending agreement on quantum or further argument.
Key Takeaways
- The District Court confirmed that the totality principle applies in WHS penalty proceedings: where multiple offences arise from the same factual circumstances, a court may impose no further penalty for lesser charges once the primary fine is set at an appropriate level.
- A guilty plea in WHS prosecutions can attract a 25% discount on the fine, reflecting both the utilitarian value of the plea and its role as evidence of remorse, consistent with the approach in R v Thomson and Houlton and R v Borkowski.
- Objective seriousness in WHS sentencing is assessed by reference to available guidance material: the existence of relevant Australian Standards and SafeWork codes of practice, and the failure to follow them, were significant factors in evaluating the gravity of the conduct.
- Where multiple safety failures overlap, including working at height without fall protection, failure to isolate machinery, and absence of lock-out procedures, the combined effect elevates the objective seriousness of the offending even if no single failure alone would warrant a severe penalty.
- Under s 6 of the Fines Act 1996, capacity to pay a fine is relevant but not decisive: a substantial fine may still be warranted by the seriousness of the offence and the need for general deterrence, and the evidentiary burden rests on the offender to raise limited capacity to pay.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 38, 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412