Citation: SafeWork NSW v Mills & Watson Plumbing Pty Ltd; SafeWork NSW v Christopher Allan Mills [2025] NSWDC 402
Court: District Court of New South Wales
Date: 3 October 2025
Judge: Strathdee DCJ
Background
A plumbing company and its sole director pleaded guilty to workplace health and safety offences arising from a trench collapse at a residential construction site in North Kellyville, NSW, in June 2022. The company had been subcontracted to perform internal and external plumbing work on a new build. To lay the necessary pipes, it arranged for a further subcontractor to excavate a trench adjacent to an earthen wall that rose to approximately 2.5 metres at its southern end, near-vertical and already beginning to slump.
On 9 June 2022, a second-year apprentice entered the trench to clear loose material from its base before pipe-laying commenced. No site-specific induction, toolbox talk, or safety briefing had been conducted that morning. Workers had not visited the site before that day, and no discussions had taken place about controls such as battering, shoring, or piling the excavation.
The earthen wall collapsed, burying the apprentice. The resulting prosecution proceeded against the company under sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW) for failing to ensure the health and safety of workers, and against the director under sections 27 and 32 for failing to exercise due diligence as an officer of the company.
Legal Issues
- What was the objective seriousness of the offending by the company and its director, and where did each offence sit in the range of possible penalties?
- What weight should be given to mitigating factors, including the guilty pleas, the defendants' personal circumstances, remorse, and evidence of financial capacity?
- What fines were appropriate after applying the 25% guilty plea discount?
- Whether costs should be ordered against the defendants in favour of the prosecutor, and whether financial hardship justified any reduction.
Decision
Strathdee DCJ assessed the objective seriousness of the offending against both defendants. The maximum penalty for the company was $1,782,579, and for the director $356,721. The court accepted, consistent with Markarian v The Queen (2005) 228 CLR 357, that maximum penalties reflect Parliament's assessment of the gravity of such offences and serve as a meaningful benchmark.
The court identified a range of aggravating features. There was no site-specific safety induction on the day, no discussion of excavation controls with the workers, and no shoring, battering, or piling of the earthen wall. The apprentice, a second-year trainee, was placed in the trench without any formal safety assessment having been conducted. The director held an excavator licence and had approximately 15 years of plumbing experience, making the failure to identify and address the risk particularly notable.
On mitigation, the court gave weight to the guilty pleas, the defendants' expressed remorse, cooperation with SafeWork NSW, and steps taken since the incident to improve safety practices. The director had no prior criminal record. The company's financial position was considered, including evidence about its capacity to pay. However, the court declined to reduce the fine on grounds of financial hardship, noting that questions in cross-examination by the prosecutor did not establish an inability to pay. The court also noted that prosecutor's costs are compensatory rather than punitive, citing Latoudis v Casey (1990) 170 CLR 534, and that a defendant's own legal costs may be taken into account in setting any monetary penalty.
The court determined a pre-discount fine of $300,000 for the company and $30,000 for the director. Both figures were reduced by 25% to reflect the guilty pleas, resulting in fines of $225,000 and $22,500 respectively. The court emphasised that the need for general deterrence and the objective seriousness of the offending required penalties that satisfied all relevant sentencing considerations under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Orders Made
Mills & Watson Plumbing Pty Ltd (matter 2024/211103):
- Convicted of the offence.
- Fined $225,000 (pre-discount fine of $300,000, reduced by 25% for guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Defendant to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Christopher Allan Mills (matter 2024/211120):
- Convicted of the offence.
- Fined $22,500 (pre-discount fine of $30,000, reduced by 25% for guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Defendant to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- The District Court confirmed that the maximum statutory penalty under the WHS Act functions as a meaningful sentencing benchmark, reflecting Parliament's judgment about the seriousness of the offence category.
- A company's failure to conduct site-specific inductions, brief workers on excavation hazards, or implement controls such as shoring or battering before workers entered a trench were treated as significant aggravating features in assessing objective seriousness.
- Under s 27 of the WHS Act, an officer's personal expertise, here extensive plumbing and excavation experience, is a relevant consideration when evaluating whether due diligence obligations were met.
- Prosecutor's costs ordered under s 257B of the Criminal Procedure Act 1986 (NSW) are compensatory in nature and represent the normal outcome where the prosecution succeeds; financial hardship will not automatically reduce them unless capacity to pay is clearly established.
- A guilty plea attracted a 25% discount on the fine for both the company and the director, applied to a pre-discount figure determined by reference to the full sentencing range and all relevant aggravating and mitigating factors.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 27, 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- 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
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188