Sentencing considerations for breaches of the Work Health and Safety Act 2011 (NSW)

Breaches of work health and safety legislation can have serious, and in some cases tragic, consequences. The seriousness of the offences can result in criminal sanctions for the offender. Where breaches of the legislation have been found, courts must weigh up various factors when determining what sanctions should be imposed. The recent decision by the District Court of New South Wales in Safework NSW v Landmark Roofing (No 2)¹ provides an excellent reminder of the factors which the court must take into account when sentencing offenders.

Facts

On 8 March 2018, Brayden Asser, a first year apprentice roof plumber, was working with another on the roof of a commercial building in Newcastle. Mr Asser was wearing a safety harness but was not attached to a static line. During the course of undertaking his work, Mr Asser fell through a polycarbonate skylight and suffered severe injuries, from which he tragically later died.

On 15 May 2020, following a five day trial, Russell DCJ found Mr Asser’s employer (Landmark) breached its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and thereby exposed Mr Asser to a risk of death or serious injury contrary to s 32 of the WHS Act². The risk was to workers, in particular Mr Asser, suffering death or serious injury as a result of falling from height while working on the alcove roof³. The matter then proceeded to a sentencing hearing.

Sentencing process

The Court noted that the maximum penalty for the offence was $1,500,000 and that reflected the seriousness of the relevant breach. In its defence Landmark relied on evidence from its principal which included statements of remorse, its otherwise unblemished work health and safety record over the past 16 years, its co-operation with WorkSafe NSW and increased WHS system reviews following the incident, charitable works programs, character references and the impacts a significant fine would have on its business.

In determining the penalty to be imposed, the Court noted that it was required to consider the objective seriousness of the offence, mitigating and aggravating factors, deterrence, and capacity to pay. 

Objective seriousness of the offence

In assessing the objective seriousness of the offence, the Court referred to the following principles:

• The proportionality principle - a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances⁴. This task requires a court to consider:
  • The range of conduct covered by the offence⁵, including the actual conduct and the surrounding circumstances relevant to aggravation and mitigation; and
  • Whether there is a reasonably foreseeable risk to safety that is likely to result in serious injury or death⁶.
• ‘Instinctive synthesis’ - weighing up all factors and making a value judgment⁷.​​​​​​
• The risk’s potential consequences, available steps to lessen, minimise or remove that risk, and whether those steps are complex and burdensome or only mildly inconvenient⁸.

In considering the approach to sentencing, Russell DCJ also noted the following principles outlined by Basten J in Nash v Silver City Drilling (NSW) Pty Ltd ; Attorney General for NSW v Silver City Drilling (NSW) Pty Ltd⁹:

• Assessment of culpability depends on the potential consequences of the risk, the availability of steps to mitigate the risk, and whether such steps are complex and burdensome or only mildly inconvenient;
• Culpability is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors; and
• The risk to be assessed is not the risk of the consequence, but the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.

Applying those principles, Russell DCJ noted the following findings relevant to the assessment of Landmark’s culpability:

• the risk of a fall from height was obvious and known to Landmark;
• it was a risk that was likely to occur; the potential consequences were grave, including serious injury or death;
• there were steps available to eliminate or minimise that risk;
• there was no cost or inconvenience in the two workers being roped onto the static line;
• Mr Asser’s death was a direct consequence of Landmark's breach of duty and the offence’s maximum penalty reflected the seriousness of the offence.

Having regard to those matters, the Court found that Landmark's level of culpability was in the ‘high end of the mid range’.

Deterrence

The Court also noted that the imposition of the penalty must reflect the need for both general and specific deterrence. General deterrence was a significant factor because of the community’s expectations that employers will comply with their safety requirements, particularly where the offence involved a fall from height. Specific deterrence was relevant because Landmark conducted and was still conducting business in a high-risk industry.

Aggravating and mitigating factors

In sentencing there is also a statutory requirement under the Crimes (Sentencing Procedure) Act 1999 (NSW) to consider aggravating and mitigating factors.

The Court referred to two aggravating factors. First, the injury, emotional harm, loss or damage caused by the offence was substantial¹⁰. Second, the victim was a vulnerable, young, inexperienced worker in his first year of apprenticeship¹¹. The Court also referred to five mitigating factors: Landmark had no record of previous convictions¹², was otherwise of good character¹³, was unlikely to re-offend¹⁴, had good prospects of rehabilitation¹⁵, and co-operated with law enforcement authorities¹⁶.

Capacity to pay

The Court explained that when imposing a fine, an offender’s capacity to pay is relevant but not decisive¹⁷. While Landmark led evidence of a significant decline in its business since the incident, with further losses forecast for the next two years, there was a lack of evidence that factors influencing that downturn would continue into the future. Furthermore, the evidence showed that Landmark was a successful company and would seem to have the capacity to borrow or call on capital from its owner in order to pay a fine.

Ultimately the Court found that Landmark had failed to show a reduced capacity to pay the fine.

While the Court found that the seriousness of the offence and the need for general deterrence warranted a substantial fine, the Court moderated the fine on the basis of Landmark’s relatively small commercial size, as well as its good safety record prior to the incident. The Court ordered Landmark to pay a fine of $400,000 plus costs.

Concluding comments

An employer’s paramount approach to work health and safety should be one of taking all necessary steps to prevent workplace incidents from occurring. Regular and comprehensive workplace health and safety reviews and audits are therefore critical. However, when breaches occur the decision in Landmark is a useful reminder of the balancing exercise undertaken by the courts in sentencing an offender for breaches of the WH&S Act.   

Postscript

On 5 November 2020, Landmark sought a stay or suspension of the orders pending the outcome of an appeal. The Court noted that an order for suspension is discretionary, but does not require exceptional or special circumstances, and that an order may be made if the defendant can demonstrate arguable grounds for the appeal.

Based on the evidence presented, the judge’s view that there were arguable grounds, the size of Landmark’s business and the substantial imposition which would be imposed on Landmark if it was required to pay the fine now (particularly given the difficult economic times due to COVID), the Court suspended the sentencing orders subject to Landmark paying $85,000 into court and providing a written undertaking to prosecute the appeal with due dispatch.

The appeal is listed to be heard on 7 April 2021.

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Michael Bath

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