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District Court 6 February 2025

SafeWork NSW v Silver Raven Pty Ltd

[2025] NSWDC 8

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

Citation: SafeWork NSW v Silver Raven Pty Ltd [2025] NSWDC 8
Court: District Court of New South Wales
Date: 6 February 2025
Judge: Scotting DCJ

Background

Silver Raven Pty Ltd, a contractor providing high-pressure water jetting and hydro-demolition services, had been engaged to perform hydro-demolition work on the Batemans Bay Bridge replacement project in New South Wales. On 1 September 2021, two of its workers were conducting high-pressure water blasting on a bridge pier, accessed via a barge on the river.

During that work, a metal connector between the jetting gun assembly and the hose failed at the maximum operating pressure of 2,500 bar. The hose separated violently and struck a worker, causing serious degloving injuries to his right forearm, including damage to extensor muscles and a 300-degree circumferential injury. The worker subsequently underwent surgery and, as of mid-2024, continued to experience swelling and circulation problems and faced the prospect of further surgery.

SafeWork NSW prosecuted Silver Raven for failing to ensure the health and safety of its workers under the Work Health and Safety Act 2011 (NSW). The company pleaded guilty.

  • Whether Silver Raven breached its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by exposing the worker to a risk of death or serious injury, contrary to s 32 of that Act
  • The appropriate assessment of objective seriousness for sentencing purposes
  • Which aggravating and mitigating factors applied, and their weight
  • The appropriate quantum of fine, including the discount to be applied for the guilty plea
  • The company's capacity to pay the fine

Decision

Scotting DCJ convicted Silver Raven following its guilty plea. The court assessed the objective seriousness of the offence as falling in the lower range of the middle-of-the-range category. Several failures contributed to the breach: the safety shroud was worn and could not be properly attached; the high-pressure connector failed below its rated capacity, suggesting inadequate inspection or maintenance; workers were not required to wear available Kevlar personal protective equipment; and the worker operating the jetting gun was not wearing appropriate blast protection on the day of the incident.

The court identified the substantial harm caused to the worker as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Because the offence requires only the creation of a risk of death or serious injury (not actual injury), the serious degloving injuries sustained placed this case beyond what might ordinarily be expected, satisfying the statutory threshold.

On mitigating factors, the court accepted that Silver Raven had demonstrated genuine remorse, cooperated with the SafeWork NSW investigation, and had good prospects of rehabilitation, evidenced by safety improvements made following both the present incident and an earlier 2015 incident. The company did not contend it had a reduced capacity to pay. The court applied a 25% discount to reflect the utilitarian value of the guilty plea.

The court set the appropriate pre-discount fine at $240,000 and, after applying the 25% reduction, imposed a fine of $180,000. The company was also ordered to pay the prosecutor's costs.

Orders Made

  • Silver Raven Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
  • Fine of $180,000 imposed (being $240,000 reduced by 25% for the guilty plea)
  • The offender to pay the prosecutor's costs of the proceedings, as agreed or assessed
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW)

Key Takeaways

  • The District Court confirmed that actual injury constitutes an aggravating factor in WHS prosecutions under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, provided the harm is greater or more serious than ordinarily expected for the offence, which requires only proof of risk and not injury itself.
  • A 25% guilty plea discount applied in circumstances where the plea was entered at an early stage, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
  • Demonstrated post-incident safety improvements, genuine remorse expressed by a responsible officer, and cooperation with the regulator's investigation each carried mitigating weight at sentencing.
  • Where a defendant company has a prior WHS offence on its record (here, a 2015 incident), that history is relevant to the assessment of objective seriousness and the need for specific and general deterrence, though subsequent remedial action can support a finding of good rehabilitation prospects.
  • Under s 122(2) of the Fines Act 1996, the court directed that half of the fine be paid to the prosecuting regulator, a mechanism available in WHS prosecutions in New South Wales.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(h), (i), (k), (m), 22
- Fines Act 1996 (NSW), s 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- SafeWork NSW v Silver Raven Pty Ltd [2019] NSWDC 425