Citation: SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411
Court: District Court of NSW
Date: 21 October 2025
Judge: Russell SC DCJ
Background
A specialist engineering and fabrication contractor was engaged to perform planned maintenance on a bucket elevator conveyor at a cement facility in New Berrima, NSW. The work involved removing the old conveyor belt, installing a new one, and refurbishing the buckets attached to it. Several other contractors were also on site, including a crane operator and the original equipment manufacturer's representative.
On 13 February 2022, during the installation of the new conveyor belt, the conveyor went into an uncontrolled free run. The fluid coupling, which transfers rotational power between the motor and gearbox, failed catastrophically and exploded, sending metal fragments into the surrounding area. One worker was struck in the back of the head by a cast alloy fragment and suffered serious injuries. Three other workers were also exposed to the risk of death or serious injury.
SafeWork NSW prosecuted the contractor under the Work Health and Safety Act 2011 (NSW) for failing to comply with its duty as a person conducting a business or undertaking (PCBU) to ensure, so far as reasonably practicable, the health and safety of workers. The contractor pleaded guilty.
Legal Issues
- What was the appropriate finding of objective seriousness for the offence under s 32 of the WHS Act?
- What weight should be given to mitigating and aggravating factors, including the early guilty plea, cooperation with investigators, and remorse?
- What fine was proportionate to the offence, having regard to the maximum penalty of $1,782,579 and the sentencing purposes under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- Whether the defendant's capacity to pay a fine was a live issue.
Decision
Russell SC DCJ convicted the contractor and imposed a fine of $225,000, reduced from a starting point of $300,000 to reflect a 25% discount for the early guilty plea. The court also ordered the contractor to pay the prosecutor's costs, and directed that 50% of the fine be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW).
The court assessed the objective seriousness of the offence by reference to the nature and gravity of the failures. The contractor failed to confirm that a safe system of work was in place before proceeding, did not prepare or enforce a Safe Work Method Statement (SWMS) for the belt replacement and bucket refurbishment task, and failed to stop work and conduct an updated risk assessment when it was notified that a change in work process had occurred. The risk of being struck by exploding components from a failed hydraulic coupling was a serious one, and a worker in fact suffered serious head injuries as a result.
In assessing mitigation, the court credited the contractor's early plea of guilty, its cooperation with SafeWork NSW throughout the investigation (including prompt production of all requested documents), and its expression of remorse. The contractor accepted responsibility for its conduct and acknowledged that Mr Bennett's injuries were caused by its actions. No submission was made about capacity to pay, so that issue did not arise.
The court noted the purposes of sentencing in this context, including general and specific deterrence, which are significant considerations in work health and safety prosecutions. The penalty was calibrated to reflect those purposes while giving appropriate weight to the mitigating factors established on the evidence.
Orders Made
- Nepean Engineering and Innovation Pty Ltd convicted of the offence under s 32 of the WHS Act.
- Nepean Engineering and Innovation Pty Ltd ordered to pay a fine of $225,000 (reduced from $300,000 by 25% for early plea).
- Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine be paid to the prosecutor.
- Nepean Engineering and Innovation Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- A PCBU's failure to prepare and enforce a SWMS, failure to confirm a safe system of work was in place, and failure to stop work when a change in process created new hazards each constituted independent particulars of a breach of the primary duty under s 19(1) of the WHS Act.
- The District Court applied a 25% discount for an early guilty plea, consistent with the requirements of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), bringing the fine from $300,000 to $225,000 against a maximum of $1,782,579.
- Where a defendant does not make submissions about capacity to pay, no reduction on that basis is available; the evidentiary onus rests on the offender to raise the issue.
- Cooperation with the regulator, including prompt production of documents and consistent assistance throughout the investigation, is a recognised mitigating factor under s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The judgment expressly noted that the agreed facts and submissions in this sentencing proceeding have no bearing on the separately listed trials of two other corporations that have pleaded not guilty to charges arising from the same incident.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465