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District Court 21 March 2025

SafeWork NSW v Abdul El-Hawly

[2025] NSWDC 74

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY SENTENCE

Citation: SafeWork NSW v Abdul El-Hawly [2025] NSWDC 74
Court: District Court of New South Wales
Date: 21 March 2025
Judge: Strathdee DCJ

Background

The defendant was a sole trader operating a tree lopping and landscaping business under the name Bell Tree Lopping, holding a Certificate III in Arboriculture and running the business for approximately 15 years. He was engaged to remove trees from a vacant lot in Kirrawee, NSW, and hired his nephew as a labourer to assist. The nephew had no prior tree removal experience but had been engaged specifically to operate a stump grinder and drive the truck.

On 23 August 2021, the nephew became entangled in a beige rope lying on the ground near the Wood Chipper (a Vermeer BC1800XL). The rope was drawn into the machine while the nephew was moving the stump grinder nearby. The defendant saw what was happening, screamed a warning, and physically pushed his nephew away from the machine, but not before catastrophic injuries occurred.

The nephew sustained bilateral above-knee amputations, extensive degloving injuries to the left foot, open fractures of the left leg, dislocation of both knees, a traumatic brain injury, friction burns to the right arm and back, and pancreatic contusion. He underwent multiple surgeries at St George Hospital. SafeWork NSW prosecuted the defendant under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with his primary duty of care under s 19(1), thereby exposing workers to a risk of serious injury or death.

  • Whether the defendant, as a person conducting a business or undertaking (PCBU), failed to comply with his duty under s 19(1) of the WHS Act to ensure worker health and safety so far as reasonably practicable.
  • What level of objective seriousness should be attributed to the offence.
  • What mitigating and aggravating factors were relevant to sentencing.
  • What discount, if any, was appropriate for the early guilty plea.
  • Whether prosecutor's costs should be ordered, and how the fine should be calibrated given the defendant's financial capacity and the costs liability.

Decision

The defendant pleaded guilty to a charge under s 32 of the WHS Act, which applies where a person fails to comply with a health and safety duty and that failure exposes workers to a risk of death or serious injury. The maximum penalty for an individual (non-officer) committing a category 2 offence is $150,000. The court assessed the objective seriousness of the offending as warranting an $80,000 fine before discount, reflecting the severe consequences of the incident, the foreseeable nature of the risk, and the availability of practical measures that could have eliminated or reduced it.

The defendant failed to establish an exclusion zone around the Wood Chipper, failed to ensure that ropes were not on the ground in the work area, and failed to prevent a rope from entering the machine's feed zone while workers were nearby. Both the Vermeer operator's manual and SafeWork Australia and SafeWork NSW guidance materials specifically warned against exactly this type of hazard.

In mitigation, the court noted the defendant's early guilty plea, his cooperation with SafeWork NSW investigators, his genuine remorse (including that he was briefly knocked unconscious when he physically intervened to save his nephew), his lack of prior convictions, and evidence that the incident had profoundly affected him. The court applied a 25% discount for the utilitarian value of the guilty plea, consistent with the principles in R v Thomson; R v Houlton and the Crimes (Sentencing Procedure) Act 1999.

The court took into account the defendant's limited capacity to pay when calibrating the final figure, and noted that it could also consider the defendant's own legal costs when fixing the monetary penalty. Consistent with the compensatory (rather than punitive) nature of costs orders confirmed in Latoudis v Casey, the court ordered the defendant to pay the prosecutor's costs as agreed or assessed, with 50% of the fine directed to the prosecutor under s 122(2) of the Fines Act 1996.

Orders Made

  • The defendant is convicted.
  • A fine of $80,000 was assessed as appropriate and reduced by 25% for the guilty plea, resulting in a fine of $60,000.
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

(Note: The orders were amended on 24 March 2025 to correct Orders 2 and 3.)

Key Takeaways

  • A sole trader PCBU was held personally liable under s 32 of the WHS Act for failing to implement basic site controls around a wood chipper, including the absence of an exclusion zone and allowing ropes to remain on the ground near an operating machine.
  • The foreseeable nature of a risk is a significant factor in assessing objective seriousness: both the machine's own manual and multiple SafeWork guidance documents specifically identified rope entanglement as a known and serious hazard.
  • An early guilty plea attracted a 25% discount from the otherwise appropriate fine, consistent with established NSW sentencing principles under R v Thomson; R v Houlton.
  • Where a defendant has a limited financial capacity, the sentencing court may take that into account alongside the anticipated costs liability when fixing the monetary penalty, although costs orders in successful WHS prosecutions remain the standard outcome.
  • Physical intervention by a defendant to prevent greater harm, and genuine demonstrated remorse, are relevant mitigating factors in WHS sentencing, though they do not displace the primacy of general deterrence in setting the penalty.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 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
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
- 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
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82