Citation: SafeWork NSW v Garben; SafeWork NSW v Stevens; SafeWork NSW v Crestville Holdings Pty Ltd [2025] NSWDC 302
Court: District Court of New South Wales
Date: 8 August 2025
Judge: Strathdee DCJ
Background
Crestville Holdings Pty Ltd operated the Sydney Indoor Climbing Gym at St Peters, NSW. The company had three directors, two of whom (Michael Garben and Simon Stevens) ran day-to-day operations. The gym offered various climbing methods, including auto-belay devices that allow climbers to descend without a partner.
On 13 October 2021, an experienced recreational climber who had visited the gym 152 times was using an auto-belay device on a 12.5-metre wall in the main room. During the climb, the lanyard supporting him snapped. He fell approximately 12 metres, lost consciousness, and died from his injuries.
Post-incident inspections by SafeWork NSW revealed significant deterioration in the auto-belay device involved: worn eyelets, a carabiner gate that was not closing correctly, considerable abrasion and softening of the lanyard webbing, jammed internal components, and accumulated debris. Critically, the device had been due for a major service in July 2021, which was never carried out, and maintenance logs showed previously identified issues with the device had not been resolved.
Legal Issues
- Whether the company, as a person conducting a business or undertaking, failed to comply with its duty under s 19(2) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as reasonably practicable, that others were not put at risk, contrary to s 32
- Whether each of the two directors, as officers of the company, failed to exercise due diligence under s 27(1) of the WHS Act to ensure the company met that duty, contrary to s 32
- What penalties were appropriate, having regard to the seriousness of the offending, the defendants' financial circumstances, their early pleas of guilty, and the utility of those pleas
- Whether the court should exercise its discretion under s 6 of the Fines Act 1996 (NSW) to further reduce the fines, and whether prosecutor's costs should follow
Decision
All three defendants had entered pleas of guilty on 13 October 2021. The court convicted each defendant and proceeded to sentence. The offences were characterised as category 2 offences under s 32 of the WHS Act, which carries a maximum fine of $1.5 million for a body corporate and $300,000 for an individual.
The court accepted victim impact statements from two family members of the deceased, who read them aloud in open court. Those statements informed the court's understanding of the profound personal consequences of the offending.
In fixing the base fine, the court assessed the seriousness of the offending, including the known history of problems with the auto-belay device, the missed service deadline, and the failure to address identified maintenance issues. The court then applied a 25% reduction for the utility of the early pleas of guilty. It further exercised its discretion under s 6 of the Fines Act 1996 to reduce each resulting fine by a further 25%, which the judgment indicates was informed in part by evidence of limited capacity to pay. The court also noted that, consistent with the general rule confirmed in Bulga Underground Operations Pty Ltd v Nash, costs follow success for the prosecutor, and that the defendants' own legal costs could be taken into account as a relevant factor.
Orders Made
Crestville Holdings Pty Ltd:
- Convicted
- Base fine assessed at $500,000; reduced by 25% for early plea to $375,000; further reduced by 25% under s 6 of the Fines Act 1996 to $281,250
- 50% moiety of fine payable to SafeWork NSW under s 122(2) of the Fines Act 1996
- Prosecutor's costs payable as agreed or assessed
Simon Stevens:
- Convicted
- Base fine assessed at $150,000; reduced by 25% for early plea to $112,500; further reduced by 25% under s 6 of the Fines Act 1996 to $84,375
- 50% moiety of fine payable to SafeWork NSW
- Prosecutor's costs payable as agreed or assessed
Michael Garben:
- Convicted
- Base fine assessed at $150,000; reduced by 25% for early plea to $112,500; further reduced by 25% under s 6 of the Fines Act 1996 to $84,375
- 50% moiety of fine payable to SafeWork NSW
- Prosecutor's costs payable as agreed or assessed
Key Takeaways
-
The District Court treated both the company's failure to maintain safety-critical equipment and each director's failure to exercise due diligence as distinct category 2 WHS offences under s 32, resulting in three separate convictions and penalties arising from the same incident.
-
A 25% reduction in the base fine was applied to each defendant to reflect the utility of early pleas of guilty, consistent with standard sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
-
Under s 6 of the Fines Act 1996, the court exercised its discretion to apply a further 25% reduction to each fine, with evidence of limited financial capacity informing that exercise.
-
Prosecution costs were ordered against all defendants as a matter of course, following the principle in Bulga Underground Operations Pty Ltd v Nash that costs ordinarily follow success for the prosecutor in WHS proceedings, absent exceptional circumstances.
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Documented maintenance deficiencies, including a missed scheduled service and repeated unresolved log entries about the defective auto-belay, were central to the court's assessment of the seriousness of the offending.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(2), 27(1), 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- 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
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455
- Jahandideh v R [2014] NSWCCA 178
- R v Cage [2006] NSWCCA 304
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