SafeWork NSW v BKH Contractors Group Pty Ltd

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
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
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
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
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
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

Texts Cited: SafeWork NSW Code of Practice Construction Work (August 2019)
SafeWork NSW Code of Practice Formwork (March 2021)
SafeWork NSW Code of Practice Managing the Risks of Falls at Workplaces (August 2019)

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
BKH Contractors Group Pty Ltd (Defendant)

Representation: Counsel:
N Evans (Prosecutor)
I Latham (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb (Defendant)

File Number(s): 2024/211089

JUDGMENT

1. On 7 June 2022 at the Western Sydney International Airport on Badgerys Creek Rd, Badgerys Creek, NSW, BKH Contractors Group Pty Ltd (BKH), being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as is reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular, Barry Moriarty (Mr Moriarty), Koneilo Figota (Mr Figota), Jari Laajunen (Mr Laajunen), and/or Matthew Dent (Mr Dent) to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. The prosecutor tendered the Prosecution Sentence Tender Bundle (PSTB) which became exhibit A. The defendant tendered an affidavit of Ben Geisker of 12 August 2025 which became exhibit 1.

3. The maximum penalty for the offence at the relevant time was $1,782,579.

Background

4. At all material times, Multiplex Constructions Pty Ltd (Multiplex) was the principal contractor managing the construction of the Western Sydney International Airport at Badgerys Creek Rd, Badgerys Creek, NSW 2555 (the site). Multiplex employed 1718 employees nationally and 528 in New South Wales as at 7 June 2022.

5. Multiplex engaged Strategic Formwork Pty Ltd (Strategic Formwork) under a contract dated 10 September 2021 for the design, manufacture, supply, hire, removal from site, freight, storage and signoff, of four self-climbing jump form systems to construct lift shafts.

6. Multiplex engaged BKH to manage the erection, modification, operation and dismantling of the jump forms supplied by Strategic Formwork.

7. BKH engaged Premier Labour Res Pty Ltd (Premier Labour) to provide workers to undertake this work, including Mr Dent**,** Mr Moriarty**,** Mr Figota and Mr Laajunen.

8. Mr Dent was generally directed by Mr Darren Smith, BKH Project Manager and Mr Dallas Greico (Mr Greico), Multiplex Foreman Jump form 1.

9. On or around 24 May 2022, there was a meeting in relation to the “Core Hoist Installation” which was attended by representatives of Multiplex and Alimak Hek Pty Ltd (Alimak). The meeting (and related documentation) related to the installation of hoists (Alimak Scando 450) in “Cores” 1 to 4 and stated that for Cores 1 and 4, hoists would be installed in the lift shaft and for Cores 2 and 4, hoists would be installed in the mechanical risers. Representatives from BKH and Strategic Formwork were invited but did not attend (listed as apologies).

10. There was no reference to the removal of the trailing decks from the “Core 1 lift shaft” (of which there were three - top, middle and lower) vertical columns or hangers being required before installation in the minutes or other related documentation. Trailing decks are decks that are installed to provide a working platform so that works can be undertaken in the Core.

The Incident

11. On 7 June 2022, after the jump form rescue training, Mr Dent, the site foreman employed by Premier Labour, was removing the trailing decks, vertical columns and “T” hangers from the Core 1 lift shaft to allow for the hoist to be positioned the following day by Alimak.

12. The approximate dimensions of the shaft penetration were 3.5 metres (north-south) and 4.1 metres (east-west). Approximate distance from working deck of jump form to peri scaffold deck within hoist shaft penetration was 7.1 metres.

13. The work being undertaken involved a risk of falling greater than two metres within the Core 1 lift shaft and also involved the use of a tower crane to remove the “T” hanger.

14. There were safe operating procedures in place for Strategic Formwork’s self-climbing coremaker jump form system prior to the incident generally, although a specific high risk Safe Work Method Statement (SWMS) by Multiplex or Strategic Formwork was not created prior to the commencement of these works.

15. At around midday, a penetration was opened by BKH to allow for access to the Core 1 lift shaft. To enable him to remove the trailing decking, Mr Dent constructed a temporary work platform which spanned the distance of the lift shaft (the temporary work platform).

16. The temporary working platform was constructed by Mr Dent using four horizontal laminated veneer lumbers and three boards of plywood to cover the void of the lift shaft. The materials used were scrap pieces of plywood. The temporary work platform did not cover the entire lift shaft.

17. Shortly after 4.00pm Mr Dent was working within the Core 1 lift shaft from the temporary work platform. Mr Dent was undoing bolts with a rattle gun and hooking up vertical columns to be removed by a crane. Mr Dent was observed on the temporary work platform by Mr Greico.

18. Simultaneously, Mr Moriarty, Mr Figota and Mr Laajunen were performing formwork below Mr Dent and the temporary working platform within the Core 1 lift shaft.

19. The temporary work platform failed due to plywood snapping which resulted in Mr Dent falling some five metres, landing on Mr Moriarty and Mr Figota below him.

20. After the incident, the plywood used for the temporary work platform was noted to appear to be “not fit for purpose”, appeared weather-damaged after a period of heavy rain, and the internal material crumbled in hand under finger pressure.

Injuries

21. As a result of the incident, Mr Dent sustained 5-7 left rib fractures, lacerations to left kidney, left scapula (shoulder) injury and a left-hand distal radial (wrist) fracture.

22. Mr Figota sustained a soft tissue injury to his left shoulder and Mr Moriarty sustained minor injuries.

Relevant Guidance Materials and Statutory Obligations

23. The relevant guidance materials and statutory obligations are set out at pars 34 to 42 of the Agreed Statement of Facts.

Systems of Work Prior To the Incident

24. Mr Dent was not using a fall protection system whilst working on the temporary work platform.

25. There was inadequate consultation between Multiplex, BKH, Strategic Formwork and workers on the safe system of works in relation to dismantling the trailing decks, and the removal of vertical columns and hangers in the Core 1 lift shaft.

26. No specific SWMS or Safe Operating Procedure (SOP) was developed for the dismantling of the trailing decks, removal of vertical columns and hangers, nor was the need to do so addressed in a High Risk Workshop (HRWS) conducted by Multiplex.

27. Additionally, there was no formal or documented inspection conducted to ensure the temporary work platform was adequate for the works.

28. There was no exclusion zone in place with respect to the workers working directly under Mr Dent.

29. Multiplex had the following measures in place in relation to the formwork work activities:

30. HRWS meetings were conducted with its contractors. The purpose of these meetings was to outline high risk construction activities, highlight risks, discuss safety considerations, and identify outstanding actions that needed to be undertaken prior to commencing works. However, as noted above, HRWS 28 failed to identify or address the relevant work being undertaken preceding the incident.

31. Site inductions.

32. A Work, Health and Safety handbook.

33. Subcontractor meetings.

34. Strategic Formwork had the following measures in place in relation to the formwork work activities:

35. Periodic inspections of the self-climbing jump forms.

36. SOP 289-C1-000-001 for the Site Erection of the self-climbing coremaker jump form system.

37. SWMS 298-002--000 for the Typical Operation of the self-climbing coremaker jump form system.

38. BKH had the following measures in place in relation to the formwork work activities:

39. Safe Work Method Statement – Horizontal Elements.

40. Safe Work Method Statement – Vertical Elements.

41. Daily pre-start meetings.

Systems of Work After the Incident

32. In response to Prohibition Notices issued by SafeWork NSW, BKH took the following actions (in consultation with Multiplex):

33. A task methodology for “Rectification of Hoist Install” was developed.

34. A related SWMS for the task entitled “Access Scaffold Revision 1” was developed.

35. Toolbox talks were held with jump form workers prior to work recommencing.

36. Weekly jump form meetings with BKH, Strategic Formwork and Multiplex were implemented.

37. Multiplex also identified the following corrective action to adopt as part of its incident investigation:

“If an activity wasn’t identified in HRWS / SWMS, then work must stop until such time as a SWMS is developed. Sequencing, which wasn’t previously considered or identified, to be captured in a SWMS prior to the work being undertaken must stop until such time as a SWMS is developed…”

34. Strategic Formwork took the following actions:

35. Implemented SWMS for coremaker dismantling and dismantling of self-climbing coremaker jump form system.

36. Review of SWMS 298-002-001.

37. In response to the SafeWork NSW Improvement Notice in relation to consultation with other duty holders, Multiplex:

38. Commenced weekly minuted meetings to discuss any changes to design and work methodology of the jump forms and any issue a party may have.

39. Conducted HRWS for the operation of jump forms which included the Hoist install #45.

40. Mandated that HRWS will be postponed if required or interfacing subcontractors are not appropriately represented.

41. Required additional Strategic Formwork attendance to further support site supervision of jump forms – providing a competent site technician to supervise and check the jump form prior to and throughout the climbing of any of the jump forms on site, in addition to BKH supervision.

42. Required Strategic Formwork to undertake monthly inspections of all jump forms with a third-party engineer.

43. In response to an Improvement Notice issued by SafeWork NSW, Premier Labour, in addition to participating in the abovementioned minuted meetings, added “hold points” to their SWMS in relation to any modifications or changes to design that are made, requiring that a methodology for safe systems of work be developed and a toolbox talk conducted with workers prior to the work being carried out.

44. In response to an Improvement Notice issued by SafeWork NSW in relation to temporary work platforms, BKH:

45. Implemented SOP for installation of temporary working platforms.

46. Updated their temporary works design procedure to include a handover checklist and design for platform over 2.4 metres.

47. Implemented a working platform handover checklist for anything over 2.4 metres span.

48. Held a toolbox talk with workers informing them of new SOP.

49. In response to the Improvement Notice in relation to ensuring formwork components are in safe condition and fit for purpose, BKH:

50. Updated processes for managing and inspecting storage of materials to include inspection after inclement weather.

51. Had a third-party engineer attend the site to undertake a full inspection on all materials across the site.

52. Undertook inspections across all sites/yards on materials for water damage.

53. Held a toolbox talk on the importance of inspecting materials.

Sentencing

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

40. 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 judgment without any attempt to state precisely how any given factor has influenced the judgment.”

Objective Seriousness of the Offence

41. 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] HCA 39 at [27]; (2011) 244 CLR 120:

“…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.”

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

43. The duties of the defendant require that they ensure the health and safety of workers so 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.

44. 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.

45. 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].

46. 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.

47. 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].

48. 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.”

49. 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.”

50. 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.

51. 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).

52. 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).

53. 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:

54. 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].

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

56. 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].

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

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

59. 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).

60. 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 Defendant

55. The plea of guilty entered reflects an acknowledgment by the defendant that at all material times the defendant’s business or undertaking involved managing the erection, modification, operation and dismantling of formwork at the site.

56. The plea also encompasses an admission that there was a risk to worker/s on or in the vicinity of the subject temporary work platform, of suffering serious injury or death as a result of:

57. Falling from height due to a failure or collapse of the temporary work platform.

58. Being struck by a falling object/s and/or person due to failure or collapse of the temporary work platform.

59. It is evident that the incident came about as a result of a change in plans. The defendant agrees that it was invited to the meeting to discuss the change of plans, but did not attend, and provides no explanation for its non-attendance.

60. In entering its plea of guilty to the s 32 offence, the defendant acknowledges that it failed to implement measures that were reasonably practicable to eliminate or minimise the risk. Those measures are pleaded in par 13 of Annexure A to the Amended Summons (Tab 1 PSTB) as follows:

“(a) Work from the Core 1 lift shaft including the trailing decks to identify the risks and hazards associated with the removal;

(b) Requiring a safe work procedure be developed and enforced in response to the risk assessment as set out above in (a) which contained adequate information in relation to the risks and controls relevant to performing work, such as the steps identified in (c) to (d) below;

(c) Monitor and supervise work to ensure that work is carried out in accordance with applicable safe work procedures, including stopping non-compliant works and conducting necessary reviews prior to resumption;

(d) Planning and implementing exclusion zones regarding the work undertaken in relation to the removal of the formwork from the Core 1 lift shaft including the trailing decks, to minimise risks associated with falling object/s and/or person/s;

(e) Engaging in adequate consultation with other duty holders, such as Multiplex, Strategic Formwork and workers in relation to the removal of the formwork from the Core 1 lift shaft including the trailing decks; and/or

(f) Confirming workers were provided adequate information, instruction, training and supervision in relation to the removal of the formwork from the Core 1 lift shaft including the trailing decks to confirm the steps identified at (b) to (f) were being followed.”

59. The plea of guilty further encompasses admissions by the defendant that:

60. Workers were exposed to the risk.

61. The serious injuries sustained by Mr Dent on 7 June 2022 were a manifestation of the risk.

62. The nature of the risk was plain, namely, the risk of a worker being seriously or fatally injured as a result of falling from height due to the failure or collapse of the temporary work platform and/or being struck by a falling object/s and/or person due to failure or collapse of the temporary work platform.

63. The creation of the risk could have been anticipated due primarily to the fact that:

64. There was available to the defendant relevant guidance materials such as the SafeWork NSW Code of Practice Managing the Risks of Falls at Workplaces (August 2019) and the SafeWork NSW Code of Practice Formwork (March 2021).

65. There was inadequate consultation between Multiplex, the defendant, Strategic Formwork and workers on the safe system of works in relation to dismantling the trailing decks, and the removal of vertical columns and hangers in Core 1 lift shaft.

66. No specific SWMS or SOP was developed for the dismantling of the trailing decks, removal of vertical columns and hangers, nor was the need to do so addressed in a HRWS conducted by Multiplex.

67. There were no formal plans or documents inspection conducted to ensure the temporary work platform was adequate for the works.

68. In the circumstances, the risk and its potential consequences were plainly foreseeable and should have and could have been anticipated by the defendant. The risk could have been eliminated or minimised.

69. Another factor relevant to an assessment of objective seriousness is the existence of simple and straightforward remedial steps that could have been taken by the defendant to eliminate the risk to safety.

70. These measures are outlined above, which the defendant acknowledges by virtue of its plea, were simple and straightforward steps that could have been taken to eliminate the risk to safety.

71. There were SOPs in place for Strategic Formwork’s self-climbing coremaker jump form system prior to the incident generally, although a specific high risk SWMS was not created prior to the commencement of the subject works.

72. There is no evidence before the court as to why the defendant was not present at the relevant HRWS on 24 May 2022 referenced at par 9 above and at par 24 of the affidavit of Ben Geisker sworn 12 August 2025 (exhibit 1).

73. It is evident that the risk was an obvious and ongoing one – it was a risk that should have been readily identified. The seriousness of the foreseeable harm was high.

74. Multiple workers were exposed to the risk, specifically Mr Dent, Mr Moriarty, Mr Figota and Mr Laajunen.

75. The duty owed to the defendant’s workers was a simple one, and the steps to be taken to avoid the risk were straightforward and readily available.

76. At the sentence hearing an issue was raised as to whether the defendant was entitled to take into account what the other duty holders present on the site were tasked with when the court assesses the foreseeability of the risk. I invited both parties to provide further written submissions after the sentence hearing, which they both did, and for which I am grateful.

77. The defendant’s submission is as follows:

“The extent to which the Court can take into account the responsibility of other PCBUs was discussed in Workcover Authority of NSW (Inspector Ankucic*) v McDonald's Australia Limited and* anor matter [2000] NSWIRComm 1123, (2000) 95 IR 3831 at 437: adopted by the Full Bench in Simpson Design Associates Pty Ltd v Inspector Ching [2011] NSWIRComm 72 , (2011) 205 IR 40 at [112]. In that case, the NSWIRC rejected a submission that parity could be applied by reference to companies that were culpable but not prosecuted. His Honour did however hold at 437 that:

‘The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's system in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendants’ actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald’s system. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken’.”

72. The prosecutor in her additional submission accepts that on the question of overall moral culpability, the court is entitled to take into account the actions of other duty holders, and I have done so. There were present additional PCBUs on site who also had work, health and safety responsibilities, and to some extent, BKH was entitled to rely on those obligations placed on other parties on the site.

73. I note that s 46 of the WHS Act provides:

“46 Duty to consult with other duty holders

If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, cooperate and

coordinate activities with all other persons who have a duty in relation to the same matter.”

74. Referring to s 46 of the WHS Act, the SafeWork NSW Code of Practice Construction Work (August 2019) states at p 14:

*“*Since various contractors and subcontractors work on the same construction site, their activities are likely to overlap and interact with each other. They each have a duty to protect the health and safety of workers and other persons at the workplace and must therefore consult, cooperate and coordinate activities to ensure each person is made aware of what the others are doing, to identify the hazards and risks and decide who is best placed to take action to control the risks.”

75. Clearly, the intention is not to absolve PCBUs in the position of BKH of their non-delegable duty, and I have taken that overriding duty into account in coming to my determination

Deterrence

76. 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.

77. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court 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).

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

79. 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 at [74]-[75] which said:

“[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.”

80. 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 building and construction industry and constant vigilance is required to protect against fall risks, as these incidents are avoidable and often have severe consequences

81. 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.

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

83. 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. There is a requirement for an element of specific deterrence in this matter as the defendant continues to trade.

Aggravating Factors

84. 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).

85. 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

86. 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.”

87. The defendant has not been subjected to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which would apply to a defendant with no previous convictions. This is a very impressive record given the size of the organisation, the numerous large sites upon which it works, and the fact that BKH contracts or employs approximately 500 people in NSW.

88. The affidavit of Mr Geisker, the sole director of BKH details at pars 57-67 the very extensive contributions that the defendant makes to the community, for which they ought be commended. I accept that the defendant is a corporate citizen of good character: s 21A(3)(f) of the Sentencing Act.

89. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act.

90. I accept that the defendant has demonstrated a very strong commitment to workplace safety and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act*.*

91. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act. It has provided significant support for Mr Dent during his recovery, assisted with his return to work, and now directly employs him full-time on modified duties.

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

93. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% 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 s 21A(3)(k) and s 22 of the Sentencing Act.

94. The court is entitled to take into account the fact that the defendants will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on BKH, 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.

95. 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

96. I make the following orders:

97. The defendant is convicted.

98. The appropriate fine for the offence is $200,000 and that will be reduced by 25% to reflect the plea of guilty.

99. Accordingly, I order the defendant to pay a fine of $150,000.

100. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

101. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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