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District Court 14 July 2026

SafeWork NSW v Fusarelli

[2026] NSWDC 244

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

Citation: SafeWork NSW v Fusarelli [2026] NSWDC 244
Court: District Court of New South Wales
Date: 14 July 2026
Judge: Strathdee DCJ

Background

The defendant was the sole director and officer of Myra Corporate Pty Ltd, a company conducting scientific research and development, including biogas experiments, at a site in Alstonville, NSW. Myra engaged a team of researchers, including a Chief Scientist with a PhD in Microbiology and Biogeochemistry, to undertake experiments involving anaerobic digestion, a process that produces biogas containing hydrogen sulphide (H2S), a highly toxic gas that can cause unconsciousness and respiratory arrest at high concentrations.

From February 2022, the Chief Scientist began experiencing serious symptoms consistent with H2S exposure while working in a small laboratory of approximately 9 square metres. Despite informing the defendant on 1 March 2022 of the exposure, researchers continued working in the hazardous environment, with H2S concentrations measured inside gas collection bags at greater than 5,000 parts per million (ppm), far exceeding the workplace exposure standard of 10 ppm averaged over eight hours. The affected scientist ceased work due to ill health on 20 April 2022, and the experiment was decommissioned the following day.

SafeWork NSW prosecuted the defendant for failing, as an officer of Myra, to exercise due diligence to ensure the company complied with its primary health and safety duty under the Work Health and Safety Act 2011 (NSW). The defendant pleaded guilty but sought to avoid conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits a court to discharge an offender without recording a conviction.

  • Whether the defendant should be discharged without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The objective seriousness of the offence and the appropriate starting point for the fine
  • The weight to be given to mitigating factors, including the guilty plea and the defendant's personal circumstances
  • Whether the defendant's financial capacity justified a reduction in the fine under section 6 of the Fines Act 1996 (NSW)
  • Whether the defendant should pay the prosecutor's costs

Decision

Issue 1: Section 10 discharge

The court declined to discharge the defendant without conviction. Strathdee DCJ concluded that the objective seriousness of the offending, the need for general deterrence in the work health and safety context, and the nature of the defendant's role as the company officer responsible for health and safety all weighed against a section 10 outcome. The defendant was accordingly convicted.

Issue 2: Objective seriousness and starting point

The court assessed the offence as involving a significant failure to exercise due diligence. The defendant, as sole director, bore direct responsibility for health and safety and had been expressly informed of the H2S exposure on 1 March 2022, yet adequate measures were not implemented. H2S concentrations recorded were dramatically in excess of the workplace exposure standard, and the exposed scientist suffered ongoing and serious symptoms over an extended period. The maximum penalty applicable was $356,721.75, and the court set an appropriate fine of $230,000 before any discounts.

Issue 3: Guilty plea discount

The court applied a 15% reduction to reflect the defendant's plea of guilty, reducing the fine from $230,000 to $195,500.

Issue 4: Financial capacity

The defendant did not tender evidence of his financial position in a form sufficient to satisfy the court on the balance of probabilities that he lacked capacity to pay. The court declined to exercise its discretion under section 6 of the Fines Act to further reduce the fine. The court did note it had taken into account the defendant's liability for the prosecutor's costs and his own legal costs when assessing the monetary penalty.

Issue 5: Costs

The court ordered the defendant to pay the prosecutor's costs, noting that an award of costs to a successful prosecutor is the ordinary rule and is compensatory rather than punitive. No exceptional circumstances arose to depart from that rule.

Orders Made

  • The defendant is convicted of the offence
  • The defendant is ordered to pay a fine of $195,500
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor
  • Pursuant to section 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed

Key Takeaways

  • A section 10 discharge is unlikely to be appropriate in work health and safety prosecutions involving objectively serious offending and a clear need for general deterrence, even where the defendant is an individual rather than a corporation.
  • Under section 27(1) of the Work Health and Safety Act 2011 (NSW), an officer's duty of due diligence requires active steps to ensure compliance with the company's primary duty; a director's awareness of a hazardous exposure event without implementing adequate controls can constitute a significant failure.
  • Where a defendant seeks a reduction in fine for financial incapacity under the Fines Act 1996 (NSW), the onus rests on the defendant to satisfy the court on the balance of probabilities, and bare statements from the bar table or a mitigation document without supporting evidence are insufficient.
  • The District Court confirmed that costs awarded to a successful prosecutor are compensatory in nature, and payment of those costs may be taken into account when calibrating the monetary penalty imposed on a defendant with a limited capacity to pay.
  • Sentences in WHS matters are assessed against the applicable maximum penalty, with the objective circumstances of the breach, including the severity of the hazard, the duration of exposure, and the defendant's actual knowledge of the risk, all bearing on the starting point for the fine.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 31, 32
- Work Health and Safety Regulation 2017 (NSW), cll 44, 49, 351
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122

Cases
- 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
- 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
- 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
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Jahandideh v R [2014] NSWCCA 178
- Lavorato v The Queen [2012] NSWCCA 61
- R v Cage [2006] NSWCCA 304
- R v MA (2004