SafeWork NSW v Acon Projects Pty Ltd; SafeWork NSW v Adrian Conditsis

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking a business or undertaking– risk of death or serious injury – maximum penalties
COSTS – capacity to pay – prosecutors costs

Legislation Cited: Crimes­ (Sentencing Procedure) Act 1999 ­(NSW), ss 3A, 21A, 22
Criminal Procedure Act 1986­ (NSW), s 257B
Fines Act 1996 ­(NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 31, 32

Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Environmental Protection Authority v Barnes ­[2006] NSWCCA 246
Ferguson v ­Nelmac ­Pty Ltd­ (1999) 92 IR 188
Fisher v Samaras Industries Pty Ltd­ (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Inspector Beacham v J & L Marble Pty Ltd­ [2009] NSWIRComm­ 100
Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm­ 153
Jahandideh­ v R [2014] NSWCCA 178
Latoudis ­v Casey ­[1990] HCA 59; (1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority­ (NSW)­ (1999) 90 IR 464
Markarian v The Queen ­(2005) 228 CLR 357; [2005] HCA 25
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock­ v The Queen­ (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling ­(NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen­ (2012) 35 VR 399; [2012] VSCA 82
R v Cage ­[2006] NSWCCA 304
R v MA ­(2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria­ [2009] NSWCCA 68
R v MMK ­(2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Thomson; R v Houlton­ (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Youkhana [2004] NSWCCA 412
Rahme­ v R­ (1989) 43 A Crim R 81
SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry ­Zizikas ­[2017] NSWDC 299
SafeWork NSW v HCM Building Pty Ltd­ [2019] NSWDC 632
SafeWork NSW v ­Cosentino­ Australia Pty Ltd (No 2) [2018] NSWDC 182
SafeWork NSW v­ Grandcity ­Constructions Pty Ltd; SafeWork NSW v Cai­ [2018] NSWDC 398
SafeWork NSW v Pendle Ham and BAcon Pty Ltd [2025] NSWDC 63
SafeWork NSW v SEE Roofing Pty Ltd; SafeWork NSW v Semaan [2025] NSWIC 22
Unity Pty Limited v SafeWork NSW­ [2018] NSWCCA 266
Veen v R­ (No 2) ­[1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Adrian Conditsis (Defendant)
Acon Projects Pty Ltd (Defendant)

Representation: Counsel:
K Curry (Prosecutor)
A Conditsis (Self-represented) (Defendant in 2023/207088 only)
Solicitors:
Department of Customer Service (Prosecutor)

File Number(s): 2023/207088; 2023/207096

Judgment

Introduction

1. On 25 November 2025, Acon Projects Pty Ltd (Acon) pleaded guilty to an offence that as a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health & Safety Act 2011 (NSW) (the WHS Act), without reasonable excuse, engaged in conduct that exposed individuals, in particular Assadullah Ehsani (Mr Eshani) and Khaliqdad Zahidi (Mr Zahidi), to a risk of death or serious injury and who engaged in conduct with gross negligence, or was reckless as to the risk contrary to s 31 of the WHS Act (the Category 1 offence).

2. The offence to which Acon has pleaded guilty is set out in the Summons filed on 28 June 2023. While Acon was also originally charged with an offence contrary to s 32 of the Act, this was in the alternative.

3. After the plea of guilty was entered, Acon was placed into administration on 21 January 2026. The prosecutor was advised that there would be no representative on their behalf and there was no appearance before me by Acon during the hearing.

4. The maximum penalty for the s 19(1) / s 31 offence is a fine of $3,565,158 as at the time of the offence.

5. On 25 March 2024, Mr Adrian Conditsis (Mr Conditsis) pleaded guilty to an offence under s 27(1) of the WHS Act that as an officer of Acon he failed to exercise due diligence to ensure that the company complied with its health and safety duty under s 19(1) of the WHS Act and thereby exposed workers to a risk of death or serious injury contrary to s 32 of the WHS Act (the Category 2 offence).

6. The offence to which Mr Conditsis has entered a plea of guilty is set out in the Summons filed on 28 June 2023 in the Prosecution Sentence Tender Bundle (PSTB) at Tab 2.

7. The maximum penalty for the s 27(1) / s 32 offence is a fine of $356,721 as at the time of the offence.

8. Mr Conditsis was self-represented.

9. An Amended Summons in each matter was filed in court which made very minor changes to the original Summons to which Mr Conditsis had entered a plea, and with regard to Acon, deleted the charge of recklessness as to the risk.

10. The prosecutor tendered in each matter the Prosecution Sentence Tender Bundle (PSTB) which became exhibit 1. The defendant, Mr Conditsis, tendered an affidavit sworn on 23 January 2026 which became exhibit A.

Background

11. Acon was carrying on a business or undertaking involving project management of residential construction work. Acon was engaged by the owners of 69 Fleet Street, Carlton NSW (the site) as the principal contractor of the construction of a two-storey residence (main building) and granny flat. Mr Conditsis was the sole director of the company.

12. The above offences relate to an incident that occurred on 1 July 2021 when two workers, Mr Ehsani and Mr Zahidi were undertaking tiling work in the bathroom located on the first floor of the main building at the site. Mr Zahidi fell three metres from the first floor over the unprotected edge of the hallway to the ground below.

13. The plea of guilty encompasses an admission that there was a risk of workers, including Mr Ehsani and Mr Zahidi, suffering serious injury or death as a result of falling from a height over an unprotected edge (the risk). As a result of the incident, Mr Zahidi suffered serious injuries including a traumatic brain injury, a bilateral subdural haemorrhage, depressed skull fractures, multiple rib fractures, a fractured scapula, and a pneumothorax.

14. I accept that the offending in this matter, represents a serious breach of both Acon and Mr Conditsis’ health and safety duties. The likelihood of the risk occurring given the unprotected edge present at the site and the lack of control measures in place was high.

15. Further, I accept that the penalty imposed should reflect not only the objective seriousness of the offending but also the need for general deterrence.

Nature and Circumstances of the Offending and Factual Findings

16. Section 31(1) of the WHS Act provides:

“(1)­ A person commits a Category 1 offence if—

(a) ­­the person has a health and safety duty, and

(b)­­ the person, without reasonable excuse, engages in conduct that—

(i)­­ exposes an individual, to whom the duty is owed, to a risk of death or serious injury or illness, or

(ii) ­­if the person is an officer of a person conducting a business or undertaking—exposes an individual, to whom the person conducting a business or undertaking owes a health and safety duty, to a risk of death or serious injury or illness, and

(c) ­­the person—

(i)­­ engages in the conduct with gross negligence, or

(ii) ­­is reckless as to the risk to an individual of death or serious injury or illness.”

17. By virtue of its plea of guilty, Acon has pleaded to the following elements in relation to the Category 1 offence:

Element A - The defendant had a health and safety duty imposed by the WHS Act.

Element B - The defendant without reasonable excuse, engaged in conduct that exposed an individual to whom that duty is owed to a risk of death or serious injury or illness

Element C - The defendant engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury or illness.

18. The nature and circumstances of the Category 1 offence are set out in the Summons and the Prosecutor’s Amended Statement of Facts (Acon ASOF), located at Tab 1 of the PSTB.

19. The nature and circumstances of Mr Conditsis’ offending is set out in the Summons and the Prosecutor’s Amended Statement of Facts (Conditsis ASOF), located at Tab 2 of the PSTB.

20. As such, given some of the facts are not agreed, the court will be required to make some factual findings in relation to both offences. The relevant questions to be answered are:

21. Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 18(a):

“Mr Conditsis was present at the site and at no point prior to or on 1 July 2021 did he:

(a) Conducts a site induction or toolbox talk;

in relation to the workers at the site on 1 July 2021.”

2. Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 18(b):

“Mr Conditsis was present at the site and at no point prior to or on 1 July 2021 did he:

(b) Discuss or identify hazards or safety issues at the site;

in relation to the workers at the site on 1 July 2021.”

3. Sentence in Dispute (underlined) – Acon ASOF and Conditsis ASOF, par 34:

“Acon Projects engaged in a verbal system of work to inform workers of potential workplace hazards. However this was ad hoc and informal and was not always implemented.”

4. Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 39:

“Prior to the incident, Acon Projects did not verify that workers undertaking work at the site, in particular Mr Zahidi and Mr Abdullah Arifi, (Mr Arifi) had valid construction induction cards.”

5. Paragraph in Dispute – Acon ASOF and Conditsis, par 40:

“Prior to the incident, Acon Projects did not take steps to provide any supervision, training, or instruction to the workers at the site on 1 July 2021 in relation to hazards or safety issues at the site including processes for incident and hazard reporting.”

6. Paragraph in Dispute – Acon ASOF, par 43:

“Prior to the incident, Mr Conditsis was aware that there was no edge protection installed on the exposed edge of the hallway. Mr Conditsis was also aware that on 1 July 2022 Mr Ehsani and Mr Zahidi were required to travel along the internal hallway and up and down the staircase to carry out tiling work in a bathroom on level 1 as he had showed them prior to 1 July 2022 the areas where the work was to be undertaken, and which tiles to use in which areas.”

Evidence

Mr Khaliqdad Zahidi

21. Mr Zahidi gave evidence before me with the assistance of a Farsi interpreter. Mr Zahidi was a tiler in 2021 and has done work for Acon on two occasions. Alongside Assadullah Ehsani, he was engaged by Acon to tile bathrooms, an alfresco, laundry and granny flat for three to four days in June-July 2021, at a property located at 69 Fleet Street, Carlton.

22. Mr Conditsis showed Mr Zahidi around the site including the bathroom. Mr Zahidi holds a white card and a licence for tiling. Mr Conditsis never asked to look at either document.

23. Mr Zahidi almost died due to the incident which caused him to suffer a traumatic brain injury and 21-day comatose state. He could not tolerate a line of questioning which requires him to relive the incident and has poor memory.

24. At this point in his evidence Mr Zahidi became increasingly upset and was unable to continue to give evidence and was excused. I found Mr Zahidi to be an extremely honest witness and accept his evidence in full.

Mr Assadullah Ehsani

25. Mr Ehsani gave evidence before me with the assistance of a Farsi interpreter. Mr Eshani was a tiler in 2021 and had previously been contracted by Acon, once for a property in Cabramatta and once for another job in June-July 2021 at 69 Fleet St, Carlton.

26. At the second job, the main house was at the front and granny flat at the back. The main house was a two-storey house, where Mr Ehsani worked as a tiler doing the alfresco area, bathrooms and laundry. There were two bathrooms on the second floor, and one bathroom and a laundry on the first floor.

27. Mr Ehsani worked at the site for three to four days with Mr Zahidi. On the first day he arrived at the site, Mr Conditsis came to the site and showed Mr Ehsani and Mr Zahidi the order in which they were to complete the work and gave them a site tour, including the second-floor bathrooms. From then onwards they commenced working.

28. Mr Ehsani held a white card and a tiling licence in June-July 2021. However, neither of these were asked for by Mr Conditsis, nor any other documents. During the site walkthrough, Mr Conditsis did not discuss with Mr Ehsani anything in relation to site safety or show him any documents regarding safety. Mr Ehsani also stated that he was not provided with any induction training.

29. Mr Ehsani worked for one day doing cementing, one day for the bathroom floors and the third day was spent tiling the walls on the second floor.

30. There was a staircase from the ground floor. At the top of this staircase there was a bathroom on both the left-hand and right-hand sides. Mr Ehsani worked on the right-hand side bathroom. To get to this bathroom, Mr Ehsani had to walk across a narrow hallway, where there was nothing to stop him from falling down the stairs. There was no railing on the upstairs steps nor was there any barrier stopping Mr Ehsani from going upstairs. Mr Ehsani stated that Mr Conditsis never spoke to him about the stairs or gave any warnings in relation to the stairs.

31. While Mr Ehsani was working on the site, Mr Conditsis went into the bathroom at times to give directions in relation to work. Mr Ehsani does not remember how many times Mr Conditsis came upstairs, but it was at more than once.

32. Mr Ehsani stated that Mr Conditsis never told him what he should do if he had any concerns about safety, such as making a report, or gave any information about the risk of falling from the second level, or instructed Mr Ehsani not to work on the second level.

33. Mr Ehsani did not tell Mr Conditsis that he wanted to work on the second floor because his tools were already there. Mr Ehsani’s normal practice is to work only as instructed to.

34. His evidence was that Mr Conditsis concentrated mostly on how soon the job could be finished rather than on safety. He did not tell Mr Ehsani about waiting for a balustrade to be installed upstairs.

35. In Mr Ehsani’s view, Mr Conditsis chose to engage Mr Ehsani and Mr Zahidi at Carlton as they had satisfactorily completed another job in Cabramatta.

36. Mr Ehsani normally worked on sites where safety protocols and procedures were not followed. However, Mr Ehsani did not have concerns in relation to his safety when he started the job.

37. I found Mr Eshani to be an open and honest witness and I accept his evidence.

Adrian Conditsis

38. Mr Conditsis gave evidence and was cross-examined by the prosecutor.

39. Mr Conditsis hired Mr Zahidi and Mr Ehsani for their expertise in relation to tiling services only, and did not raise any concerns with Mr Zahidi and Mr Ehsani in relation to safety and specifically, the lack of a balustrade, as it appeared to Mr Conditsis to be an obvious risk. He would typically bring up concerns that are more hidden.

40. On the day of the incident, he attended the site in the morning for a walkthrough, then left to attend a café for a period of a couple hours and returned in the afternoon to complete work in the garage.

41. The safety induction fence and sign were present at the site. The induction involved a walkthrough of the site with Mr Conditsis which occurred a few days prior to them undertaking the job. Mr Zahidi and Mr Ehsani were shown the site, including the areas required to be worked on. Mr Arifi was not given a walkthrough as he did not attend on the day. Mr Conditsis accepts that as principal contractor it is his responsibility to ensure the safety walkthroughs occur.

42. Mr Conditsis told Mr Zahidi and Mr Ehsani on the day of the incident to commence work in the granny flat prior to other areas of the site as they were impeding other works, including floor levelling. In his evidence, Mr Conditsis stated that Mr Zahidi and Mr Ehsani elected not to proceed with work in the granny flat as their tools were already located in the main house. The floor leveller contractor was unable to attend on the day of the incident, so this was rescheduled and Mr Conditisis was no longer concerned with tilers working in the main house when he returned to the site to work in the garage.

43. Annexure M to exhibit A contains a screenshot of Mr Conditsis corresponding with the floor levelling contractors to arrange their work, who advised they could only begin levelling on Wednesday, 30 June 2021.

44. Mr Ehsani and Mr Zahidi were working on the second floor as they were engaged by Mr Conditsis to do so.

45. At par 2(k) on p 4 of his affidavit, Mr Conditsis states that the temporary balustrade was removed in late June 2021 to facilitate the installation of a glazed balustrade by his regular contractor. The balustrade contractor would usually attend a site to quote the installation, then return to manufacture it. This can take weeks or occur in the same day depending on various factors.

46. On the last page of Tab 19 of the PSTB, there is a copy of an email sent from Mr Conditsis to Prosafe Glassing dated 1 July 2021 in relation to the installation of glass shower screens and a balustrade at 69 Fleet St, Carlton. This was the first formal measure taken to facilitate the balustrade’s installation.

47. At the time of the site walkthrough with Mr Zahidi and Mr Ehsani there was no temporary balustrade in place as it had been removed prior. The temporary balustrade should have been removed only after an arrangement with the glazier was made.

48. At par 2(l) of his affidavit, Mr Conditsis states that he advised Mr Zahidi and Mr Ehsani to stick to the lower ground floor before the balustrade was in place. He agreed that he did not specifically acknowledge during the walkthrough that there was a risk of death or injury due to the lack of a balustrade.

49. At par 2(m) of his affidavit, Mr Conditsis’ states Mr Zahidi and Mr Ehsani requested to finish work on the “wet areas”, referring to the internal wet areas on the property. Mr Conditsis did not check on their progress when he returned to the site in the afternoon on the day of the incident. He left the site at around 3.00pm and does not recall checking on their progress before leaving.

50. Since the incident, Mr Conditsis has allocated a safety budget across all projects. He cannot recall if there was a safety budget prior to the incident.

51. At par 9(e) of his affidavit, Mr Conditsis states having anxiety about losing his business due to the incident. However, he has not seen any doctors or psychologists in relation to anxiety and does not consider himself clinically anxious or depressed.

52. At par 12(a) of his affidavit, Mr Conditsis states paying himself a low wage to ensure that his business remains afloat. In financial year 2022-23, he paid himself a significantly higher wage compared to other years.

53. At par 12(c) of his affidavit, Mr Conditsis refers to a loan of $720,000, which went to Acon Projects Pty Ltd and was used to pay outstanding tradespersons’ bills from ongoing work. The remainder of his inheritance, around $1.5 million, was used to pay off the mortgage on his property at Moorebank, which his mother has a caveat on due to being a financier. The defendant’s property at Edensor Park is also owned 50/50 with his mother and is still mortgaged.

54. Mr Conditsis is not currently employed as Acon Projects Pty Ltd has been liquidated, but he intends to regain employment in the future.

55. I found Mr Conditsis to be an honest witness, who has gaps in his memory, and I accept his evidence. He was at pains to accept responsibility for the accident, and was very upset that it had occurred. I accept that to be genuine.

Issues in Dispute

56. In summary, the key issues in dispute are as follows:

57. Whether Mr Conditsis directed the tilers to work on the first floor or at least was aware they were working on the first floor on the day of the incident (see Acon ASOF and Conditsis ASOF, pars 13, 17; Acon ASOF par 43; and Conditsis Affidavit, pars 2(1), 3(d)).

58. Whether Mr Conditsis conducted a site induction, toolbox talk or discussed or identified any safety hazards at the site (see Acon ASOF and Conditsis ASOF, pars 18, 40; and Conditsis Affidavit, par 3(f)).

59. At par 15 of the Summons against Acon and at par 16 of the Summons against Mr Conditsis, the following failures are particularised:

“a) Failing to undertake an adequate risk assessment for the tiling works that identified the risk of a fall from unprotected edges, assessed the risk and determined the most effective control measures to manage the risk;

b) Failing to provide a site induction or adequate site induction of workers involving identification of onsite hazards and risks;

c) Failing to develop, implement and enforce processes for consultation and reporting by workers of hazards and incidents;

d) Failing to develop, implement and enforce controls to manage the risk of falls from level 1 of the main building;

e) Failing to require Safe Work Method Statements (SWMS) to be provided by subcontractors prior to work being undertaken at the site;

f) Failing to develop, implement and enforce a SWMS for the tiling work that identified the hazard of unprotected edges and described the measures to be implemented to manage the hazard such as guarding or scaffolding;

g) Failing to provide information, training and instruction to workers about the hazard of working at heights and the measures implemented to guard against it in accordance with the SWMS;

h) Failing to provide supervision, or adequate supervision, to workers to ensure compliance with its SWMS; and/or

i) Failing to prevent sequencing of works that required work to take place and/or prohibit work on level 1 of the main building until adequate control measures were in place to protect against the hazard of unprotected edges.”

58. Mr Conditsis makes a number of admissions in his affidavit including the following:

“i. 2(e): He did not document ‘toolbox’ discussions;

ii. 2(h): There was no documented system in place for hazard reporting;

iii. 2(k): His removal of what he describes as ‘pre-existing safety measures’ led to the incident;

iv. 3(f): There was never a documented system in place in relation to toolbox talks, inductions, or the identification of hazards;

v. 3(h): There was no documented system in place for ensuring workers had induction cards;

vi. 3(i): There was no documented system of training in relation to the identification of hazards;

vii. 4(d): He fully accepts responsibility that the site was under his supervision and control and acknowledges that there was no documented safety system;

viii. 7(b): There was no documented system in relation to the sequencing of works or control measures in relation to the works to be undertaken. If this had been in place, the incident would not have occurred;

ix. 7(c): Ultimately a system failure led to the incident- from sequence planning to hazard identification and reporting, the incident occurred to the fact that the correct hierarchy of controls for providing adequate protection against a fall was not followed.”

Category 1 Offence

59. The plea of guilty by Acon represents an acknowledgement of its failures which gave rise to Mr Ehsani and Mr Zahidi being exposed to the risk and that it, without reasonable excuse, engaged in conduct which exposed those individuals to a risk of death or serious injury.

60. Scotting J considered the elements of the Category 1 offence in SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63 (Pendle Ham) (at [15]-[16]) including the fault element.

Gross Negligence

61. In Pendle Ham, Scotting J considered the concept of gross negligence at [224]-[231]. The following principles emerge:

62. There is no definition of “gross negligence” in the WHS Act.

63. The test is an objective test judged against the conduct of a reasonable person articulated to the personal attributes of the defendant.

64. Gross negligence requires something considerably more than negligence of the sort that would give rise to civil damages and the conduct would involve:

(a) a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances; and (b) a high risk that death or grievous bodily harm would follow; and (c) in all of the circumstances warrants criminal punishment.

62. Scotting J stated the following in relation to the seriousness of the Category 1 offence at [228]-[230]:

“The Act provides for significant maximum penalties for the commission of a Category 2 offence that involves a breach of s 32 of the Act. The maximum penalties provided for a Category 1 offence that involves a breach of s 31 of the Act are significantly higher and include gaol terms for Category 1 offences committed by an individual. It follows that the conduct that amounts to a contravention of s 31 of the Act must be correspondingly more serious, or else there would be no distinction between a breach of s 31 and a breach of s 32.

The steps taken by an accused to mitigate the risk are highly relevant, even if those steps were not sufficient to avoid a breach of the PCBU’s health and safety duty. In determining the degree of negligence of a PCBU, there is a significant difference between a PCBU who takes no steps to mitigate a risk and a PCBU that takes inadequate steps to mitigate the risk. To put it another way, a PCBU that has identified a risk of death or serious injury and has taken some potentially effective but inadequate steps to control it, is less likely to be considered to have engaged in gross negligence.

The nature of the risk involved is also relevant. This involves an assessment of both the consequences of the risk and the likelihood that it will occur. A highly dangerous task, such as the handling of explosives or electrical wiring, or frequent tasks involving risk, such as the use of sharp knives or the operation of hazardous machines, will more readily involve gross negligence where no steps are taken to control the risks, compared to a task involving less risk or a risk that is relatively unlikely to occur. In other words, there is a continuum against which inadequate steps are to be judged, involving both an assessment of the nature of the risk and the nature of any steps that were taken.”

63. It was submitted by the prosecutor that Acon took no steps to mitigate the risk at the time of the incident. There were no documented systems in place, nor any edge protection to guard against the risk of falling from a height of three metres over an unprotected edge. The risk of falling from a height is notoriously common in the construction industry and as such it is not unlikely: SafeWork NSW v SEE Roofing Pty Ltd; SafeWork NSW v Semaan [2025] NSWIC 22 at [76].

Factual Findings

64. In relation to Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 18(a):

“Mr Conditsis was present at the site and at no point prior to or on 1 July 2021 did he:

(a) Conducts a site induction or toolbox talk;

in relation to the workers at the site on 1 July 2021.”

I find that that Mr Conditsis did not conduct a toolbox talk with the workers prior to 1 July 2021.

65. In relation to Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 18(b):

“Mr Conditsis was present at the site and at no point prior to or on 1 July 2021 did he:

(b) Discuss or identify hazards or safety issues at the site;

in relation to the workers at the site on 1 July 2021.”

I find that Mr Conditsis did not discuss or identify hazards or safety issues at the site prior to 1 July 2021.

66. In relation to Sentence in Dispute (underlined) – Acon ASOF and Conditsis ASOF, par 34:

“Acon Projects engaged in a verbal system of work to inform workers of potential workplace hazards. However this was ad hoc and informal and was not always implemented.”

I find that Acon engaged in a verbal system of work to inform workers of potential hazards. Nonetheless, I find that this was ad hoc and informal and was not always implemented.

67. In relation to Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 39:

“Prior to the incident, Acon Projects did not verify that workers undertaking work at the site, in particular Mr Zahidi and Mr Arifi, had valid construction induction cards.”

I find that prior to the incident Acon did not verify that workers on the site, particularly Mr Zahidi and Mr Arifi had valid construction cards.

68. In relation to Paragraph in Dispute – Acon ASOF and Conditsis ASOF, par 40:

“Prior to the incident, Acon Projects did not take steps to provide any supervision, training, or instruction to the workers at the site on 1 July 2021 in relation to hazards or safety issues at the site including processes for incident and hazard reporting.”

I find that prior to the incident, Acon did not provide any supervision, training or instruction to the workers at the site on 1 July 2021 in relation to the hazards or safety issues at the site, including the processes for incident and hazard reporting.

69. In relation to Paragraph in Dispute – Acon ASOF, par 43:

“Prior to the incident, Mr Conditsis was aware that there was no edge protection installed on the exposed edge of the hallway. Mr Conditsis was also aware that on 1 July 2022 Mr Ehsani and Mr Zahidi were required to travel along the internal hallway and up and down the staircase to carry out tiling work in a bathroom on level 1 as he had showed them prior to 1 July 2022 the areas where the work was to be undertaken, and which tiles to use in which areas.”

I find that immediately prior to the incident, Mr Conditsis was aware that there was no edge protection installed on the exposed edge of the hallway as it had been recently removed. I also find that he was aware that Mr Zahidi and Mr Ehsani were required to travel along that internal hallway which on 1 July 2021 was unprotected and use the internal staircase.

Sentencing

70. The court is to approach a sentencing exercise on the basis of it being one of ­“instinctive synthesis”:­ Markarian v The Queen­ (2005) 228 CLR 357; [2005] HCA 25.

71. The approach to sentencing has been identified by Russell SC DCJ in­ SafeWork NSW v HCM Building Pty Ltd­ [2019] NSWDC 632 at [109] in this way:

“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”

Objective Seriousness of the Offence

72. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in­ Muldrock ­**v The Queen ­(2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined ­wholly by reference to the nature of offending.”

73. Subjective factors play a subsidiary role:­ Lawrenson Diecasting Pty Ltd v WorkCover Authority ­(NSW)­ (1999) 90 IR 464 at 474-475.

74. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable,­ and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

75. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety:­ Orbit Drilling Pty Ltd v The Queen ­(2012) 35 VR 399; [2012] VSCA 82 at [62]­ (Maxwell P, ­Bongiorno­ JA and Kyrou AJA); Veen v R­ (No 2)­ [1988] HCA 14; (1988) 164 CLR 465.

76. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

77. 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:­ Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

78. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

79. The Court of Criminal Appeal examined the sentencing process with regard to the­ WHS­ Act ­in the matter of ­Nash v Silver City Drilling**­ (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96­ (Nash v Silver City Drilling). His Honour Justice­ Basten, under the heading­ “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

80. His Honour further observed at [42]:

“The culpability of the respondent 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, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

81. I accept that s 3A of the­ Crimes ­*(Sentencing Procedure) Act 1999*­ (NSW) (Sentencing Act) ­is generally regarded as a codification of the common law principles of sentencing:­ R v MA­ (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality:­ R v MMK ­(2006) 164 A Crim R 481; [2006] NSWCCA 272.

82. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature:­ R v Cage ­[2006] NSWCCA 304 at [17]-[18]­ (Latham J).

83. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: ­ WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

84. The objective seriousness of an offence under s 32 of the­ WHS­ Act­ is considered in the context of the gradation of offences contained in ss 31-32 of the ­WHS ­Act:­ Nash v Silver City Drilling­ at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

85. The­ potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to ­materialize:­ Nash v Silver City Drilling ­at [34].

86. The availability of steps to eliminate or minimise the risk: ­Nash v Silver City Drilling­ at [34].

87. Whether those steps are complex, ­burdensome ­or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:­ Nash v Silver City Drilling­ at [34] and­[53].

88. Whether the risk was known or ought ­reasonably to have ­been known to or identified by the offender.

89. Whether the risk was an obvious or clear one.

90. The vulnerability of the workers exposed to the risk:­ SafeWork NSW v Grandcity**­ Constructions Pty Ltd*; SafeWork NSW v Cai*­ [2018] NSWDC 398 at [55]­ (Russell SC DCJ).

91. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of.­ In ­Nash v Silver City Drilling, ­his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the­ WHS­ Act, saying at [53]:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

Matters Relevant to Determining the Culpability of the Defendants

86. The nature of the risk was plain, namely the risk of workers suffering serious injury or death as a result of falling from a three-metre height over an unprotected edge.

87. The risk of serious injury or death from falling from a height in housing construction is one that was widely published and one Acon and Mr Conditsis foresaw.

88. The risk was obvious and known to Acon and Mr Conditsis, as edge protection had previously been in place but was removed prior to the incident.

89. The gravity of the risk was serious injury or death as demonstrated by the serious injuries sustained by Mr Zahidi, which included a traumatic brain injury and multiple injuries to his upper body. Mr Zahidi underwent multiple surgeries and had an extended hospital stay.

90. The likelihood of the risk occurring was high as workers, including Mr Zahidi and Mr Ehsani, were undertaking work at height in the vicinity of unprotected edges. In particular, the entrance to the upstairs bathroom where Mr Zahidi and Mr Ehsani were working on 1 July 2021 was separated from the unprotected edge only by a narrow hallway measuring 1100mm in width.

91. There were simple, straight-forward, and available steps which could, and should, have been taken by Acon to avoid the risk. This incident could have been prevented had Acon adopted the following simple and straightforward steps:

92. Undertook a risk assessment for the tiling works that identified the risk of a fall from unprotected edges, assessed the risk and determined the most effective control measures to manage the risk.

93. Provided a site induction, or adequate site induction, of the workers involving identification of onsite hazards and risks.

94. Developed, implemented and enforced processes for consultation.

95. There had been edge protection in place prior to the incident. Unfortunately, after the removal of the scaffold and temporary guardrail, no steps were taken to prevent a person falling from the first floor.

96. The charge is framed as “before and on 1 July 2021”, and Mr Conditsis concedes that he knew that the tilers had been working on the second floor in the days prior to 1 July 2021.

97. Mr Conditsis incorrectly thought that if the workers did not convey to him that they felt unsafe, nor express any concerns to him, that everything was fine and that there was nothing he needed to do to remedy safety hazards.

98. Nonetheless, Mr Conditsis, apart from disputing some of the facts alleged, has accepted responsibility for the events that occurred.

Deterrence

96. In fixing a penalty in relation to these ­offences, an important objective feature is the need for specific and general deterrence. This is enshrined ­in s­ 3A(b) of the­ Sentencing Act.

97. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court is to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace:­ Fisher v Samaras Industries Pty Ltd­ (1996) 82 IR 384 at 388 ­(Hungerford J).

98. When examining matters of deterrence, both specific and general deterrence apply:­ R v Miria­ [2009] NSWCCA 68.

99. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should ­normally be­ given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in ­Capral Aluminium­ which said at ­[74]-[75]­:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

100. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct ­the ­industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the construction industry which is notoriously dangerous.

101. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the­ WHS ­Act­ very seriously.

102. However, whilst general deterrence is a factor I must consider in the sentencing process, it does not dominate the exercise of sentencing discretion to the exclusion of all ­other ­factors.

103. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

Aggravating Factors

104. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the ­Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

105. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

106. In­ *Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2)*­ (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, ­health ­and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be­ taken into account ­in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

107. Neither Acon nor Mr Conditsis have been subject to a prior conviction under work health and safety law, and as such are entitled to the leniency which would ordinarily apply to a defendant with no previous convictions: s 21A(3)(e) of the Sentencing Act.

108. I accept that Mr Conditsis is a corporate citizen of good character­: s 21A(3)(f) of the­ Sentencing ­Act. Mr Conditisis took significant steps to assist and stay in contact with Mr Zahidi after the incident, and it was apparent that Mr Zahidi bears Mr Conditsis no malice, and that Mr Conditsis is devasted by what has occurred.

109. Mr Conditsis has taken significant steps to protect the safety of workers on his worksites that are referred to at length in his affidavit. I also think the shock and devastation he feels as a consequence of the accident dramatically decreases the possibility of re-offending: s 21A(3)(g) of the Sentencing Act.

110. I accept that Mr Conditisis has demonstrated a commitment to workplace safety, and therefore has­ some prospects of rehabilitation: s­21A(3)(h) of the ­Sentencing Act*.*

111. I accept that Mr Conditsis has demonstrated remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

112. The defendant co-operated with­ SafeWork NSW during its investigations: s 21A(3)(m) of the ­Sentencing Act.

113. Acon and Mr Conditisis entered pleas of guilty to the Amended Summons at a relatively late stage of the proceedings, with Mr Conditsis disputing some facts. Nonetheless, such pleas of guilty demonstrate remorse, and I will allow a deduction of 20% for the utilitarian value of the plea in accordance with the principles set out in ­**R v Thomson; R v Houlton ­(2000) 49 NSWLR 383; [2000] NSWCCA 309 and ss­ 21A(3)(k) and 22 of the­ Sentencing Act.

Capacity to Pay

114. Section 6 of the ­**Fines Act 1996­ (NSW) ­provides as follows:

“6 Consideration of an accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”

115. The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty:­ McColl v John Watson Building Services Pty Ltd ­(2004) 137 IR 310; [2004] NSWIRComm 353 at [24].

116. The offender’s capacity to pay is relevant but not decisive:­ Jahandideh**­ v R [2014] NSWCCA 178 at [16]­ (Rothman J, Hoeben CJ at CL agreeing).

117. In­ Inspector Beacham v J & L Marble Pty Ltd­ [2009]­ NSWIRComm­100, Staff J said at [57]-[58]:

“The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of NSW (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:

‘[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons­(at par 50):

“It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.”

[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82):

“... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).”

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v ­Nelmac­ Pty Ltd­(1999) 92 IR 188 at 209 - 210, Wright J, President observed:

“... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty …

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...”

[85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd­(2000) 95 IR 462 at 476:

“Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant’s means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.”’”

118. In­ Unity Pty Limited v SafeWork NSW ­[2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should ­take into account ­the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

119. I accept this ­authority is relevant to­ these proceedings. The company was effectively a one-man-band run by Mr Conditsis and could not be described as a ­“large corporation”.

120. The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm­ 153, citing ­Rahme v R ­(1989) 43 A Crim R 81 that:

“It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty.”

121. It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the ­Fines Act ­should be considered after the court has determined the appropriate fine(s).

122. I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the­ Fines Act­ are as follows:

123. The financial position and means of a defendant should be taken into account when determining the fine to be ­imposed.

124. The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that ­it­ does not have the capacity to meet a­ fine.

125. It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be ­undertaken.

126. It is for the prosecutor to check the information provided by the defendant and to assist the Court in relation to the assessment of the defendant’s capacity to pay.

127. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence:­ Ferguson v ­Nelmac­ Pty Ltd­ (1999) 92 IR 188 at [209]-[210]; McColl**­; ­SafeWork NSW v Harris Holdings NSW Pty Ltd;­ SafeWork NSW v Harry**­ Zizikas ­[2017] NSWDC 299 at [134]-[141];­ SafeWork NSW v**­ Cosentino ­**Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].

128. As Acon did not appear, there was no application under s 6 of the Fines Act.

129. Mr Conditsis did make such an application orally and in his affidavit. I accept that his financial circumstances are dire, that he has lost his company, is in enormous debt and facing a frightening future. The imposition of any fine will be very difficult, but I must still impose a fine to reflect the seriousness of the offending. The prosecutor very fairly conceded that Mr Conditsis is currently unemployed and owes a significant amount of money to his mother, which he had put into Acon to try and save the company to no avail. I am satisfied that I ought exercise my discretion under the Fines Act, and I propose to do so.

130. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: ­Latoudis ­**v Casey­ [1990] HCA 59; (1990) 170 CLR 534 at 543 ­(Mason CJ).

131. However, ­given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.

132. The court is entitled to ­take into account­ the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, and I have done so.­ Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, ­Bulga.

133. The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the ­WHS­ Act, and I have done so: Environmental Protection Authority v Barnes­ [2006] NSWCCA 246 at [78].

Penalty

129. I make the following orders:

In the matter of 2023/207096 SafeWork NSW v Acon Projects Pty Ltd:

1. Acon Projects Pty Ltd is convicted.
2. The appropriate fine for the offence is $600,000 and that is to be reduced by 20% to reflect the plea of guilty.
3. Accordingly, I order Acon Projects Pty Ltd to pay a fine of $480,000.
4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Acon Projects Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.

In the matter of 2023/207088 SafeWork NSW v Adrian Conditsis

6. Adrian Conditsis is convicted.
7. The appropriate fine for the offence is $50,000 and that is to be reduced by 20% to reflect the plea of guilty.
8. I exercise my discretion under s 6 of the Fines Act 1996 (NSW) and reduce that fine by 50%.
9. Accordingly, I order Adrian Conditsis to pay a fine of $20,000.
10. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
11. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Adrian Conditsis is to pay the prosecutor’s costs, as agreed or assessed.

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