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District Court 29 July 2026

SafeWork NSW v Fenner Dunlop Australia Pty Ltd

[2026] NSWDC 270

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2026] NSWDC 270
Court: District Court of New South Wales
Date: 29 July 2026
Judge(s): Russell SC DCJ

Background

Fenner Dunlop Australia Pty Ltd (the defendant company) was engaged to join the two ends of a new conveyor belt on a bucket elevator at a cement facility in New Berrima, NSW. The site was operated by Boral Cement Limited, which had also engaged a separate engineering contractor, Nepean, to supervise broader maintenance work on the conveyor. The defendant's worker, Mr Douglas Bennett, was performing the belt-joining task on site.

On 13 February 2022, the conveyor belt went into an uncontrolled free run, overspeeding and causing the fluid coupling to explode. Metal debris struck Mr Bennett in the back of the head, causing serious injuries. The explosion was connected to the belt being unbalanced due to the number and configuration of buckets mounted on it before lifting.

The defendant pleaded guilty on the second day of a joint trial (which also involved Boral and Nepean as co-accused) to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Bennett to a risk of death or serious injury contrary to section 32 of that Act. The maximum applicable fine was $1,782,579.

  • What was the appropriate fine, taking into account the objective seriousness of the offence and the defendant's culpability?
  • What weight should be given to mitigating factors, including the early guilty plea and the defendant's specific role in the work?
  • How should parity be assessed as between the defendant and Nepean Engineering and Innovation Pty Ltd (which had already been sentenced), given that Boral had not yet been sentenced?
  • Whether medical evidence was relevant to whether the injury was "substantial" for the purposes of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether findings from the Boral summary trial judgment could be relied upon in sentencing the defendant?

Decision

Issue 1: Use of findings from the Boral trial

The court declined to import findings from the related Boral summary trial judgment (SafeWork NSW v Boral Cement Ltd (No.2) [2026] NSWDC 88) into this sentencing. That trial involved 17 days of evidence, hundreds of pages of transcript, and thousands of pages of documents, including credibility findings about witnesses. Because the defendant pleaded guilty on day two and took no further part in those proceedings, the court confined itself to the material and submissions tendered at this sentencing hearing.

Issue 2: Parity with Nepean

The court assessed parity as between the defendant and Nepean, which had already been sentenced (SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411). The court expressly declined to make findings about Boral's relative culpability before Boral's own sentencing, noting that Boral should not be prejudged on materials advanced by parties acting in their own interests. The court found the defendant was, to a small degree, less culpable than Nepean. Nepean had supervised the task overall and supplied most of the tradesmen. The defendant was engaged only for the specific technical task of joining the belt. However, the defendant was Mr Bennett's direct employer and had not adequately supported him when he raised concerns with his manager.

Issue 3: Objective seriousness and failure to take reasonable measures

The offence involved three distinct failures: not confirming with Boral or Nepean that the manufacturer's installation instructions for balancing the belt were being followed; not making reasonable enquiries to confirm that an adequate risk assessment had been conducted after changes to the work process; and not confirming whether a mechanical engineer had been consulted about key features of the job before the belt was lifted into position. The court weighed these failures against the defendant's role as a specialist subcontractor rather than overall site supervisor.

Issue 4: Penalty and the early guilty plea

The court assessed the appropriate fine at $250,000 before applying a 15% reduction for the early guilty plea, producing a final fine of $212,500. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor (SafeWork NSW). No submission was made about the defendant's capacity to pay, so that issue did not arise.

Orders Made

  • Fenner Dunlop Australia Pty Ltd convicted.
  • Fine of $212,500 imposed (being $250,000 reduced by 15% for the early guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
  • Fenner Dunlop Australia Pty Ltd to pay the prosecutor's costs.

Key Takeaways

  • A sentencing court will not adopt findings from a related co-accused's contested trial where the defendant pleaded guilty early and took no part in that trial. The sentence hearing is confined to evidence and submissions properly before the court on sentence.

  • Parity between co-accused in WHS prosecutions requires caution where not all co-accused have been sentenced. The District Court here declined to assess Boral's relative culpability until Boral's own sentencing, so as not to prejudge that party's case.

  • Being a specialist subcontractor engaged for one discrete task, rather than the overall site supervisor, may go to a modestly reduced finding of culpability in a WHS prosecution, though direct employment of the injured worker remains a significant countervailing factor.

  • Where a defendant makes no submissions about capacity to pay, the court treats the issue as not arising and proceeds to assess penalty on general sentencing principles, including objective seriousness and the need for general deterrence.

  • An early guilty plea in WHS proceedings attracted a 15% reduction from the base fine, consistent with the approach taken in comparable recent District Court sentencing decisions.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

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
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- 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
- SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411
- SafeWork NSW v Boral Cement Ltd (No.2) [2026] NSWDC 88
- SafeWork NSW v Steel-Line Garage Doors Australia Pty Ltd [2026] NSWIC 7
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316