[2025] ACTMC 24

CRIMINAL LAW - SENTENCING - judgment and punishment - Work Health and Safety - Category 3 offence - dry cutting of engineered stone - exposure to silica dust

Work Health and Safety Act 2011(ACT), ss 19, 28, 33

Work Health and Safety Regulation 2011 (ACT), s 418B

Agius v Sana Benchtop Installation Pty Ltd; Agius v Martin Mailei [2025] ACTMC 18

Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5

SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228

SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565

Comcare v Commonwealth of Australia [2007] FCA 662

SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86

SafeWork NSW v O'Sullivan [2024] NSWDC 142

Agius v Metal Manufacturers Pty Ltd & Jack Platt [2024] ACTMC 16

SafeWork NSW v Scharfe [2021] NSWDC 260

SafeWork NSW v Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175

SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580

SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

1. On 30 October 2025, I found the Defendants, Sana Benchtop Installation Pty Ltd (Sana Benchtop) and its director Martin Mailei, guilty of committing Category 3 Work Health and Safety offences, contrary to s 33 of the Work Health and Safety Act 2011 (WHS Act) (Agius v Sana Benchtop Installation Pty Ltd; Agius v Martin Mailei [2025] ACTMC 18 (Sana Benchtop (No 1))).
2. As set out in Sana Benchtop (No 1), the Defendants' prosecution arose from work undertaken by Mr Mailei (for Sana Benchtop) on 19 January 2023 when he dry cut engineered stone benchtops that he had installed in the laundries of eight of the units at the 'Del Ray' apartment complex in Coombs (the Work Site). Dry cutting the stone benchtops resulted in a high concentration of airborne respirable crystalline silica (RCS) being produced in the units in which Mr Mailei worked.
3. This posed a risk to the health and safety of persons at the Work Site. As the Work Site was a construction site, it was occupied from time to time by a range of tradespeople and people responsible for the management of the construction work at the Work Site. Two plumbers who were at the Work Site to perform fit-off tasks were in fact exposed to the RCS when they entered one of the units that Mr Mailei had just left.
4. Known risks to health from exposure to RCS includes serious medical conditions such as silicosis, bronchitis, emphysema, lung cancer, kidney damage and scleroderma. While brief exposure to RCS is likely to pose a lower risk of adverse health conditions than longer-term exposure, even short-term exposure to high levels of RCS can lead to serious conditions.
5. As I found in Sana Benchtop (No 1), Mr Mailei's dry cutting of the engineered stone was contrary to the requirements of s 418B of the Work Health and Safety Regulation 2011 (WHS Regulation) and with two Work Site safety documents that Mr Mailei signed. Both the WHS Regulation and the safety documents prohibited dry cutting of engineered stone and required that wet cutting methods be used.
6. As a result, Sana Benchtop failed to comply with its duty under s 19 of the WHS Act to ensure, so far as was reasonably practicable, that the health and safety of other persons at the Work Site was not put at risk from the work carried out by Mr Mailei as part of the conduct of Sana Benchtop's business. Similarly, Mr Mailei failed to comply with his duty under s 28 of the WHS Act to take reasonable care to ensure that his acts and omissions did not adversely affect the health and safety of other persons at the Work Site.
7. The maximum penalty for a Category 3 offence when committed by a body corporate was, at the time of the offence, a fine of $500,000. The maximum penalty for an individual was $50,000.

1. The objective seriousness of an offence against the WHS Act, involving a failure to comply with the health and safety duty imposed by s 19 of the WHS Act, is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable that workers and others were not exposed to risks to their safety (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228 at [30]).
2. Considerations which are relevant to an assessment of the duty holder's culpability include (SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565 at [49]):

(a) the potential consequences of the risk (noting that the focus must be on the risk arising from the failure to take reasonably practicable steps to avoid injury, not the likelihood of injury resulting - conduct will be more serious, the more serious the potential injuries, whether or not they are likely to materialise - Nash v Silver City Drilling (NSW) NSWCCA 96 at [53]);

(b) the availability of steps to eliminate or minimise the risk;

(c) the ease with which mitigating steps could have been taken;

(d) whether the risk was an obvious or clear one;

(e) whether the risk was known, or ought reasonably to have been known to or identified by the offender (it is an aggravating factor if the risk was foreseeable even if the precise cause or circumstance of exposure to the risk were not foreseeable and it is a further aggravating factor if the risk was not only foreseeable but in fact foreseen by the offender - Comcare v Commonwealth of Australia [2007] FCA 662, Madgwick J noted at [120]); and

(f) the vulnerability of the workers and others exposed to the risk.

1. The culpability of an offender will turn on an evaluation of all the various factors, which may pull in different directions (Nash v Silver City Drilling (NSW) NSWCCA 96 at [42]). By way of example, the following scenarios have been considered in other cases:

(a) an offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86 at [69]);

(b) the culpability of an offender has been found to be reasonably high in circumstances where, while the relevant risk was not expected to occur often, the seriousness of the foreseeable resultant harm was extreme and the steps to be taken to avoid it were straightforward and involved only minor inconvenience and little cost (Nash v Silver City Drilling (NSW) NSWCCA 96); and

(c) the neglect of simple, well-known, precautions to deal with an evident and great risk of injury, take a matter towards the worst-case category (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]).

1. Similar considerations govern the assessment of the objective seriousness of an offence involving a failure to comply with the duty imposed on a worker by s 28 of the WHS Act (SafeWork NSW v O'Sullivan [2024] NSWDC 142; Agius v Metal Manufacturers Pty Ltd & Jack Platt [2024] ACTMC 16). As noted in Sana Benchtop (No 1), that duty is complementary to the duty owed by a PCBU under s 19 of the WHS Act. It imposes obligations on a worker 'to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk' (SafeWork NSW v Scharfe [2021] NSWDC 260 (Scharfe) at [97]).
2. However, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at the workplace. A worker is only obliged to exercise reasonable care not to expose a person to a risk to their health and safety as a result of the immediate conduct of the worker (Scharfe).

Assessment of objective serious of Sana Benchtop's conduct

1. This is a moderately serious example of a Category 3 WHS offence. It falls around the middle of the spectrum for this kind of offence
2. As I found in Sana Benchtop (No 1), the risk of other persons at the Work Site inhaling RCS was a real one given the high concentration of RCS in the relevant units (and the likelihood that persons might inhale the RCS if they entered one of the non-ventilated units in which the stone benchtops had been cut) and the range of people at the Work Site who might have had reason to access the units.
3. I accept, as Mr Mailei told WorkSafe ACT investigators, that he had locked the door to each of the units while he was working in them.. This is likely to have limited the possible exposure of people at the Work Site to high levels of RCS to those people who had a need to enter the units not long after Mr Mailei finished his work and exited the units.
4. Nevertheless, the potential consequences of the risk to the health and safety of persons at the Work Site who entered the relevant units were serious. As I have noted earlier in these reasons, exposure to RCS (even short-term exposure to high levels of RCS) gives rise to serious health and safety risks.
5. There were steps that Sana Benchtop could have taken (including steps that it was obliged by s 418B of the WHS Regulation and the Work Site safety documents to take) to eliminate or minimise the risk of exposing persons at the Work Site to RCS. As I found in Sana Benchtop (No 1), Mr Mailei:

(a) could have removed the stone benchtops from the units and cut them off-site, eliminating the risk of exposing people at the Work Site to RCS;

(b) should have used a water delivery system supplying a continuous feed of water over the cutting area to suppress airborne crystalline silica produced by the cutting. This was a legal requirement under the WHS Regulation and was also required by the Work Site safety documents. This control measure would have at least minimised the risk to people at the Work Site;

(c) could have informed the two plumbers who were nearby when he exited one of the units that he had carried out dry cutting of the benchtops and warned them not to enter any of the units he had been working in; and

(d) could have erected barricades or put up warning signs outside the relevant units.

1. None of these control measures were onerous, burdensome or costly.
2. Further, Sana Benchtop (both through the knowledge of Mr Mailei as its director and as a specialist contractor which had been engaged to instal the stone benchtops at the Work Site) ought reasonably to have known of the health and safety risks posed by exposure to RCS. It was a significant issue faced by the construction industry and had been for some time, as reflected by the publication of WorkSafe ACT's 'Managing Silica Dust at Construction Sites' guidance note in January 2022 and the introduction of s 418B of the WHS Regulation in November 2022.
3. Sana Benchtop and Mr Mailei also had actual knowledge of the information contained in the Work Site safety documents that Mr Mailei signed, which identified the health and safety risks of exposure to RCS and the range of control measures that needed to be taken to address that risk (which reflected the requirements of the WHS Regulation).

Assessment of objective serious of Mr Mailei's conduct

1. For the same reasons as I have articulated above in relation to the conduct of Sana Benchtop, the objective seriousness of Mr Mailei's offending conduct also falls around the middle of the spectrum for a Category 3 WHS offence. It too is a moderately serious example of that offence.
2. This is not a case where Mr Mailei's duty of care was merely complementary to the duty owed by Sana Benchtop. The obligations imposed by the duties were the same because Sana Benchtop, in all relevant respects, acted through the conduct of Mr Mailei. As the Prosecution submitted, Mr Mailei entirely controlled the way in which he conducted his work.
3. As noted in Sana Benchtop (No 1):

(a) it was Mr Mailei's conduct which created the risk of persons at the Work Site being exposed to RCS;

(b) it was reasonably foreseeable that the risk might eventuate and that, if it did, the health and safety of other persons at the Work Site might be adversely affected (possibly significantly so); and

(c) there were a range of reasonably practicable steps that Mr Mailei could (and was obliged to) have taken to avoid exposing other people to the risk of inhaling RCS at the Work Site (as I have identified in relation to Sana Benchtop's failure to comply with the duty that it owed under the WHS Act).

1. It was reasonable to expect Mr Mailei to take each of those steps given his position as a director of a specialist stone installation company, the knowledge within the industry of the health risks posed by exposure to RCS, the legislative ban on dry cutting of engineered stone and the fact that Mr Mailei had signed the Work Site safety documents which prohibited dry cutting of engineered stone at the Work Site.

1. Sana Benchtop and Mr Mailei did not contest their prosecutions and did not make any submissions in relation to their subjective circumstances.

1. Neither Sana Benchtop nor Mr Mailei have any prior convictions for offences against the WHS Act. Mr Mailei has one conviction for a minor traffic matter this is not relevant to these proceedings. Accordingly they are both entitled to some leniency in relation to the present offence.

1. The Prosecution brought two cases to my attention as being of possible assistance in determining an appropriate sentence in these proceedings. They are SafeWork NSW v Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205 and an unreported case from the Queensland Magistrates Court. Both of these cases involved Category 3 WHS offences and conduct which exposed workers and others to the risk of inhaling RCS.

SafeWork NSW v Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205

1. In SafeWork NSW v Moit & Sons (NSW), the defendant operated a recycling facility which, in part, recycled masonry waste by crushing it. The task of crushing the masonry generated substantial amounts of RCS.
2. The defendant failed to comply with the duty it owed to its workers under s 19 of the WHS Act on several occasions between 2014 and 2021. In summary, the defendant:

(a) did not have a safe work method statement (SWMS) for concrete crushing that was applicable to its general labourers (it had a SWMS for the concrete crushers which identified dust inhalation as a potential hazard but the SWMS was not applicable to general labourers);

(b) required workers to work in close proximity to concrete crushers;

(c) did not conduct fit testing in relation to disposable masks;

(d) did not have a personal monitoring program to measure its workers' exposure to RCS;

(e) did not prevent workers from taking home contaminated clothing;

(f) utilised inadequate water suppression methods; and

(g) provided inadequate information, training and instruction to workers about RCS.

1. In the defendant's favour were the facts that it did not have any relevant prior convictions, it was a good corporate citizen with good prospects of rehabilitation, it had implemented remedial measures and it had shown contrition and acceptance of responsibility. The remedial measures it took included the provision of more effective respiratory protection, personal exposure monitoring, systematic water-based dust suppression, the provision of disposable protective suits and a wide-ranging review of its procedures and policies.
2. The court considered that the case before it involved an objectively serious offence. It noted that the seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straight forward and available to the defendant.
3. The defendant was convicted and fined $100,000, which was reduced to $75,000 as a result of the defendant's guilty plea.

Unreported Queensland Magistrates Court decision, 23 June 2023

1. Like the present matter, the Queensland Magistrates Court's case involved the sentencing of a stone benchtop manufacturer and installation company which had been engaged to install engineered stone bench tops in an apartment. When the stone benchtops did not fit, the two workers performing the installation task were directed to cut the bench tops on-site.
2. The workers were instructed to use an unguarded angle grinder, with the blade of the angle grinder to be kept wet. One worker used a mask with a filter and one held a rag over his face. A spray bottle was used to squirt water onto the angle grinder but dust was nevertheless produced. Other workers who entered the apartment could see, smell and taste the dust.
3. While the defendant had a SWMS which prohibited the cutting of engineered stone at the workplace, it failed to comply with the duty it owed to its workers and others under s 19 of the WHS Act by not instructing its workers to comply with the SWMS, including by instructing the workers not to undertake the cutting of the bench tops off-site.
4. The defendant pleaded guilty and cooperated with the relevant WHS investigation. It had no previous convictions and was otherwise proactive in relation to health and safety issues in its workplace. It had taken significant steps to ensure compliance with its health and safety obligations.
5. The defendant was fined $32,500. The court did not record a conviction.

1. I have had regard to the sentencing outcomes of these cases, and the reasons of the courts in coming to those outcomes, in determining the appropriate sentence for Sana Benchtop and Mr Mailei. In doing so, I note, as the Prosecution submitted, that past sentences do not fix the boundaries within which future courts ought to sentence (Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).
2. I consider that the objective seriousness of the offending conduct in SafeWork NSW v Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205 is more serious than the offending conduct of Sana Benchtop and Mr Mailei, but that their conduct is more serious than the offending conduct in the unreported Queensland Magistrates Court case. I consider that the acceptance of responsibility shown by both defendants in the comparable cases, and the commitment that they demonstrated to improving their work health and safety practices stands in contrast to the position taken by Sana Benchtop and Mr Mailei, who did not take part in these proceedings.
3. Mr Mailei sought to downplay the significance of the incident in his statement to WorkSafe ACT's investigators and, despite signing the two Work Site safety documents, also sought to avoid accountability for his conduct by telling investigators that he had not undertaken industry silica awareness training, and therefore could not be expected to have complete knowledge with respect to the risks and controls required to cut engineered stone in a safe manner or in accordance with the WHS Regulation.

1. The primary considerations to which I must have regard in determining an appropriate sentence are the objective seriousness of the offending conduct and the importance of the sentence reflecting the need for general and specific deterrence (SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175 at [33]; SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580; C_omcare v Commonwealth of Australia_ [2007] FCA 662, at [120]).
2. The offending conduct of both Sana Benchtop and Mr Mailei was moderately serious and general and specific deterrence are the dominant sentencing purposes. General deterrence is a particularly relevant factor in light of the objects and terms of the WHS Act (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]). As the Court in SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105 said at [30]:

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

1. Sana Bencthop and Mr Mailei must also be held accountable for their conduct, which must also be denounced.
2. Having regard to the maximum penalties that were applicable at the time the offences, I have determined that the appropriate punishments are a fine of $50,000 for Sana Benchtop and a fine of $10,000 for Mr Mailei.

(a) On the charge of committing a Category 3 offence, contrary to s 33 of the Work Health and Safety Act 2011 (CC 40080 of 2025), Sana Benchtop Installation Pty Ltd is convicted.

(b) Sana Benchtop is required to pay a fine of $50,000.

(c) On the charge of committing a Category 3 offence, contrary to s 33 of the Work Health and Safety Act 2011 (CC 40069 of 2025), Martin Mailei is convicted.

(d) Martin Mailei is required to pay a fine of $10,000.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.