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District Court 22 May 2026

SafeWork NSW v Paul Edmond Semmens

[2026] NSWDC 155

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS S 6 OF THE FINES ACT (NSW) PROSECUTOR’S COSTS

Citation: [2026] NSWDC 155
Court: District Court of New South Wales
Date: 22 May 2026
Judge(s): Strathdee DCJ

Background

The defendant, a sole trader operating a shade sail installation business, pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW). He had a duty under s 19(1) of that Act to ensure, so far as reasonably practicable, the health and safety of his workers. The charge arose from an incident on 8 April 2022 at a playground site in Narellan Vale.

On the day in question, the defendant was unavailable for work and had directed a client (AMAC Holdings Pty Ltd) to contact his employees directly. Two of his employees attended the site to install shade sails without supervision, a Safe Work Method Statement (SWMS), fall arrest equipment, or an elevating work platform (EWP). While one worker was at the top of an unsecured extension ladder, a strap broke, a shackle struck him in the face, and he fell to the ground.

The injured worker sustained severe injuries including a right hepatic artery injury, loss of a kidney due to renal artery transection, a sternal fracture, and bilateral wrist fractures. SafeWork NSW prosecuted the defendant as the person conducting a business or undertaking (PCBU) who failed to comply with his WHS duty, thereby exposing workers to a risk of death or serious injury.

  • Whether the defendant's conduct, as a PCBU, constituted a failure to comply with his health and safety duty under s 19(1) of the WHS Act, exposing workers to a risk of death or serious injury contrary to s 32
  • The appropriate sentence, having regard to aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the purposes of sentencing in s 3A
  • Whether the defendant's financial circumstances warranted a reduction of the fine under s 6 of the Fines Act 1996 (NSW), and the onus borne by the defendant in establishing incapacity to pay
  • Whether the prosecutor was entitled to an order for costs under s 257B of the Criminal Procedure Act 1986 (NSW)

Decision

The District Court found that the defendant's failures were multiple and serious. He did not provide his workers with a SWMS for the installation, did not arrange for supervision in his absence, did not ensure fall prevention or arrest equipment was available, and did not make any arrangements through AMAC for the provision of safety instructions or equipment. The unrated straps used on site had a known history of breaking. The workers were left to perform a high-risk task at height with no safety systems in place.

Strathdee DCJ assessed the objective seriousness of the offence as moderate to high within the range for Category 2 offences. The court noted several aggravating features: the failure to provide any fall protection for work above two metres, the absence of any SWMS, the lack of supervision, and the severity of the injuries suffered. The defendant's plea of guilty, entered on 19 November 2025, attracted a discount for the utilitarian value of the plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), though the lateness of the plea limited the extent of the discount.

In relation to capacity to pay, the defendant tendered a financial circumstances statement and a tax return for the year ending June 2024. Strathdee DCJ applied s 6 of the Fines Act 1996 (NSW), noting that the onus lay on the defendant to establish that a reduction was warranted. The court accepted that the defendant's financial position was modest and exercised its discretion to take that into account in fixing the quantum of the fine, while emphasising that fines for WHS offences must still serve the purposes of general and specific deterrence.

The court also considered the prosecutor's application for costs under s 257B of the Criminal Procedure Act 1986 (NSW), guided by the principle from Latoudis v Casey (1990) 170 CLR 534 that costs ordinarily follow the event. An order for costs was made in favour of SafeWork NSW.

Orders Made

  • The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
  • A fine was imposed (quantum reduced on account of the defendant's limited capacity to pay under s 6 of the Fines Act 1996 (NSW)), with a discount applied for the guilty plea
  • The defendant was ordered to pay the prosecutor's costs

Key Takeaways

  • A PCBU's duty under s 19(1) of the WHS Act does not cease or diminish when the PCBU is personally unavailable. The District Court found that the defendant bore responsibility for ensuring safe systems of work were in place for his employees even when he was absent and another entity was coordinating the work.
  • The absence of a SWMS, fall arrest equipment, supervision, and task-specific safety instructions for high-risk work at heights was treated as a serious cluster of failures, elevating the objective seriousness of the offence.
  • Under s 6 of the Fines Act 1996 (NSW), the onus rests on the defendant to establish that their financial circumstances warrant a reduction in the fine. The court accepted limited means as a relevant consideration but emphasised that deterrence remains a primary sentencing purpose for WHS offences.
  • A guilty plea entered relatively late in proceedings still attracts a discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but the utilitarian value of the plea, and therefore the size of the discount, diminishes with delay.
  • Costs were ordered in favour of the prosecutor consistent with the general principle that costs follow the event, as articulated in Latoudis v Casey.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291(a), 299–303
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122

Key Cases:
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- 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
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Environmental Protection Authority v Barnes [2006] NSWCCA 246