SafeWork NSW v Capital Lines & Signs Pty Ltd

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)

Cases Cited: Alenezi v R [2023] NSWCCA 283
Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67
BW v The Queen [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353
Meis v R [2022] NSWCCA 118
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
R v Borkowski [2009] NSWCCA 102
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v WC [2008] NSWCCA 268
R v Wilkinson (No 5) [2009] NSWSC 432
R v Youkhana [2004] NSWCCA 412
Rahme v R (1989) A Crim R 81
SafeWork NSW v Danrae Remedial Services Pty Ltd [2025] NSWDC 70
SafeWork NSW v Denbrok Constructions Pty Ltd [2023] NSWDC 407
SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4
Safework NSW v Hydromet Corporation Pty Limited; Safework NSW v Jeremy Perera [2020] NSWDC 82
SafeWork NSW v Nsaire [2026] NSWIC 19
SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233
Saunders v R [2022] NSWCCA 174
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Capital Lines & Signs Pty Ltd (Offender)

Representation: Counsel:
S Tasneem (Prosecutor)
I Latham (Offender)
Solicitors:
SafeWork NSW (Prosecutor)
Wotton Kearney (Offender)

File Number(s): 2025/35009

Publication restriction: Nil

JUDGMENT

1. Capital Lines & Signs Pty Ltd (Capital Lines) conducted a business that involved manufacturing metal road signs and installing road signs, pavement markings, and retro-reflective raised pavement markers (RRPMs). On the evening of 3 February 2023, Kailey Jitts was part of a crew installing replacement RRPMs on a section of the Hume Highway. Ms Jitts and Allister Dickey were working to clear out dried Evergrip Bituminous Marker Adhesive (bitumen) blockages in the Crafco Super Shot 60 Diesel Melter (melter) when Mr Dickey inadvertently activated the trigger on the applicator gun, causing an uncontrolled release of hot bitumen from the output pipe. Ms Jitts sustained partial thickness burns to her forehead, eyelids, nose, left and right hands, and right forearm for which she underwent skin grafts.

2. Capital Lines appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed Ms Jitts to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The risk particularised at paragraph 13 of Annexure A to the Amended Summons is as follows:

“The risk was the risk of workers, in particular Ms Jitts, suffering serious injury or death as a result of contact with hot bitumen.”

4. By its plea of guilty, Capital Lines accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“a. Installing and maintaining an effective operational control on the melter, such as an applicator gun with a trigger lock that effectively prevented unintentional activation of the melter’s pump and was not susceptible to inadvertent unlocking;

b. Maintaining the melter with a heat guard and insulation in place over the output pipe, in accordance with the manufacturer’s instructions;

c. Conducting an adequate risk assessment for the melter that specifically referred to the task of cleaning and preparing the melter for use and identified the risk of workers coming into contact with hot bitumen and appropriate controls to manage the risk;

d. Developing, implementing, and enforcing an appropriate safe work procedure, for the melter that specifically referred to the task of cleaning and preparing the melter for use and which required:

i. All operational controls on the melter be locked into the “off” position before cleaning or maintenance work on the melter was conducted, and/or

ii. Isolating power to the melter and locking out all methods of re-energisation while workers were cleaning or conducting maintenance on the melter, and/or

iii. An exclusion zone to be enforced around the melter until power had been isolated, and/or

iv. The melter to be operated and maintained in accordance with the manufacturer’s specifications, and/or

v. Work to stop immediately if any deficiencies or issues with the melter, including any missing parts, were identified and prohibiting operation of the melter until those deficiencies had been rectified;

e. Appropriately enforcing the use of adequate personal protective equipment (PPE), including protective clothing such as long sleeved shirts, enclosed shoes, safety glasses or face shields, and heat resistant gloves, while workers were undertaking work involving the melter;

f. Providing adequate supervision to workers to ensure that:

i. Work was conducted in accordance with appropriate safe work procedures; and

ii. Workers did not perform work they were not trained or authorised to perform;

g. Providing adequate information, training and instruction to workers in relation to the processes and procedures outlined at (c)-(f) above, including:

i. Providing information, training, and instruction to workers required to conduct work involving the melter, in particular Ms Jitts and Mr Dickey, on how to use the available lock-out and isolation mechanisms, and/or

ii. Providing information, training, and instruction to all workers on how to properly use required PPE, and/or

iii. Providing information, training, and instruction to workers in supervisory roles, in particular Mr Ursino, in relation to implementing and monitoring compliance with risk controls and stopping work immediately if work was not being carried out in accordance with the safe work procedures.”

5. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843).

Facts

6. The prosecutor tendered an Agreed Statement of Facts (ASOF) as part of its sentence bundle (Exhibit A), as well as evidence in reply (Exhibit B). I have taken this evidence into account in coming to an appropriate sentence. What follows is a brief summary of the prosecutor’s evidence relevant to the offence to permit an understanding of the sentence imposed.

Background

7. Capital Lines (ACN 125 069 810) was incorporated on 24 April 2007 in the name CL & S Pty Ltd. At the time of the incident, its sole director and company secretary was, and remains, Andrew Stewart. Until 29 November 2018, Capital Lines & Signs Pty Ltd was the name of the entity now known as Stewart Property Group Pty Ltd (ACN 125 136 370) (SPG), which was incorporated on 1 May 2007. The sole director and secretary of that company is Diana Stewart. On 30 November 2018, that entity changed to its present name. On the same date, the entity known as CL & S Pty Ltd assumed its present name.

8. Capital Lines was engaged by Transport for NSW to supply and install replacement RRPMs along the Hume Highway, including the section of the highway near the slip lane access to Marulan, NSW (the Site). To undertake this work, Capital Lines used the melter that was mounted on a Hino 300S11B truck, designed to install RRPMs (RRPM truck). The melter was used to heat up bitumen, which was applied when sealing RRPMs onto the road surfaces.

9. The work commenced on 2 February 2023 and was to be completed over five days. The work included the installation of missing RRPMs and removal and replacement of non-functional RRPMs along the section of the Hume Highway at or around the Site.

10. On the evening of 3 February 2023, Capital Lines employees carrying out the RRPM installation work at the Site were Ms Jitts, Sinapati ‘Patty’ Tuilagi and Hugo Tuilagi as General Labourers, Ian Nicholls as a Senior Labourer, Mr Dickey as Leading Hand and Dominic Ursino as Team Leader.

The incident

11. In preparation for the commencement of work, at approximately 7:00pm, one of the workers turned on the melter to allow it to start heating up the bitumen.

12. At approximately 8:15pm, Ms Jitts and Mr Dickey were working to clear out dried bitumen blockages in the melter. Ms Jitts was using a small metal pick to clear out a blockage in the L-shaped kettle output pipe at the base of the melter, while Mr Dickey was using a drill to clear a blockage in the applicator gun. The hose of the applicator gun was disconnected from the melter to expose the kettle output pipe. However, the applicator gun was still connected to the pump by a cable, which allowed the pump to be activated by the trigger on the applicator gun. Mr Dickey was not aware that the applicator gun was equipped with a trigger lock that was intended to prevent accidental pump actuation.

13. At approximately 8:17pm, Mr Dickey inadvertently activated the trigger on the applicator gun, causing the melter’s pump to actuate, resulting in an uncontrolled release of hot bitumen from the output pipe. Ms Jitts, who had been leaning over the output pipe, was struck with hot bitumen on her hands, forearms, forehead, and in the area around her eyebrows. She was not wearing heat resistant gloves nor safety glasses and was instead wearing ordinary prescription glasses. She also had her sleeves rolled up, exposing her forearms.

14. After hearing Ms Jitts scream, Mr Ursino immediately retrieved his personal drinking water bottle from the cab of the RRPM truck and applied water onto Ms Jitts’ face and arms to cool the bitumen on her skin. An ambulance attended the site and transported Ms Jitts to Goulburn Base Hospital. On 6 February 2023, Ms Jitts was admitted to the specialist Burns Unit at Concord Hospital in Sydney.

Injuries

15. Ms Jitts sustained partial thickness burns to her forehead, eyelids, nose, left and right hands, and right forearm, for which she underwent skin graft surgeries at the Concord Burns Unit.

Legal obligations and guidance material

16. There was a plethora of guidance material available to the offender at the time of the incident. The SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace*,* December 2022 (Plant COP) relevantly provides that before workers or other persons use plant in a workplace, the PCBU must, as far as is reasonably practicable, provide them with information, training, instruction and organise ongoing supervision as necessary to protect them from the risks arising from use of the plant. It further provides that a risk assessment can help determine the severity of a risk, the effectiveness of existing control measures, whether further control measures are required to control the risk, and how urgently they need to be implemented.

17. The Plant COP also provides that a person with management or control of plant in a workplace must prevent unauthorised alterations to or interference with plant and take all reasonable steps to ensure that all safety features are used in accordance with instructions. Operator controls should be identified for the convenience of users and guarded to prevent unintentional activation, with a lock-out process being the most effective isolation procedure. Workers who operate plant should be competent or suitably supervised during training and the designer and manufacturer should be consulted to ensure all relevant safety issues have been considered before any alterations are made.

18. The SafeWork NSW Code of Practice, Construction Work, August 2019 was also available.

19. Clause 379 of the Work Health and Safety Regulation 2017 (NSW) imposes specific duties on a PCBU to provide supervision necessary to protect a worker from risks to health and safety where the worker is likely to be exposed to a hazardous chemical. It provides that workers and other persons at the workplace should be given information, training and instruction about the nature of the hazardous chemicals involved and the risks to the worker, the control measures implemented to address those risks, the arrangements in place to deal with emergencies and the selection, use, maintenance, storage and limitations of any PPE required to control risks and the limitations of the PPE.

20. The Australia/New Zealand Standard AS/NZS 1336:2014 – Eye and face protection – Guidelines relevantly identifies at Table 4.1 that hot bitumen presents a risk of “[l]iquid splash, harmful liquids”, the risks associated with which can be controlled by using splash resistant eye protection. Similarly, the Australia/New Zealand Standard AS/NZS 2161:1:2016 – Occupational protective gloves – Selection, use and maintenance relevantly provides, at Table 1, that gloves made of leather, pigskin or aramid blends should be used for work involving hot objects or other flame-based hazards.

21. The SafeWork NSW Plant, Equipment and Machinery Energy Isolation Guidelines relevantly provides that it is critical for workplaces to have a process to ensure energy to plant and equipment is fully isolated before any maintenance or repair work commences to prevent accidental start-ups. It also provides information in relation to isolating, de-energising, locking out, and tagging-out plant and equipment.

22. Finally, the NSW Roads & Maritime Services work health and safety procedure, Bitumen (Bitumen Procedure) dated 1 September 2017 provides guidance on how to manage the risks of working with bitumen and bituminous products. It stipulates that a risk assessment is required when workers are potentially exposed to hazardous material through inhalation, ingestion or skin contact and requires workers to be trained in control measures to manage risks arising from work involving and associated with bitumen, including the use, care and storage of PPE and emergency evacuation procedures.

Systems of work prior to the incident

23. At the time of the incident, a trigger lock on the applicator gun intended to prevent unintentional activation of the pump could be moved from a ‘locked’ to an ‘unlocked’ position with minimal force and had nothing to prevent this occurring unintentionally. Further, the lock was only marked on one side of the gun, in the same colour as the gun itself.

24. There was no system of work or procedure at all which specifically addressed cleaning and preparing the melter for use, let alone one which required operational controls on the melter to be locked into the ‘off’ position before cleaning or maintenance work was conducted. Similarly, there was no system of work or procedure which required power to be isolated and locked out before cleaning or maintenance work was conducted on the melter or an exclusion zone to be created around the melter until the power had been isolated.

25. The SWMS for RRPM installation relevantly provided that the potential for exposure to hot materials and burns when installing RRPMs was to be managed through the wearing of full PPE (gloves, glasses, long pants and shirt). It further provided that a first aid kit with burn aid dressing and water were to be available, and that pre-start checks were to be conducted daily. It did not specifically address the use of the melter, and so did not provide any information on the risks and control measures to mitigate those risks when cleaning and preparing the melter for use.

26. Capital Lines had made PPE available to workers, including long sleeved shirts, long pants, safety boots, safety glasses, and gloves. However, the wearing of appropriate PPE while undertaking work on the melter was not enforced. I have set out above what Ms Jitts was wearing when the incident occurred. Mr Dickey was wearing a long sleeved work shirt and heat resistant gloves, but no safety glasses. Mr Ursino, who was standing next to where Ms Jitts and Mr Dickey were working, and could see both of them, did not instruct Ms Jitts and Mr Dickey to wear the PPE required by the SWMS. The work health and safety (WHS) Management Plan which applied to the RRPM installation work at the Site states that the person supplying PPE to workers at the workplace must provide workers with information, training, and instruction as to its proper use.

27. The documented Plant Risk Assessment for the RRPM truck (Risk Assessment) identified the potential hazard of workers coming into contact with objects at high temperature. To control that risk, it required guarding to be fitted to engines, which was only removed when undertaking maintenance, and then only when the engine was cold. It expressly prohibited removing the radiator cap if the engine was hot and required workers to wear gloves and not touch the RRPM boiler ‘Supershot’ when it was at operating temperature.

28. The Risk Assessment provided instructions to turn off and lock out the melter prior to testing, inspection, maintenance, cleaning or repair, but only in the context of crush injuries sustained by contact with moving parts. It did not specifically address the task of cleaning and preparing the melter for use. The only control measure listed in the Risk Assessment, relevant to the risk of workers coming into contact with hot bitumen was “wear gloves”.

29. A Daily Job Progress & Site-Specific Risk Assessment Report/Job Safety Plan (Daily Job Sheet) was required to be completed each day by the Team Leader. The Daily Job Sheet completed on 3 February 2023 for the RRPM installation work at the Site was completed digitally and was unsigned. It identified the risk of burns and the use of PPE as a control measure but did not detail the PPE required. The record of the daily toolbox talk given by the Team Leader before work on the road commenced on 3 February 2023, and which was signed, made no record of any discussion of the risk of burns.

30. Capital Lines had access to the ‘Parts Manual – 26618, Revision A’ (Parts Manual) for the melter published by the manufacturer, which provided operating instructions and safety information in relation to the melter. However, at the time of the incident, Mr Ursino had only read the Parts Manual once, when he had experienced an issue with the melter, and neither Ms Jitts nor Mr Dickey had been provided with a copy. Capital Lines did not have a system of work or procedure for the melter which required it to be operated and maintained in accordance with the manufacturer’s specifications and which required work to stop immediately if any issues arose.

31. The melter was supplied by the manufacturer with a heat guard, designed, among other things, to protect the operator from hot surfaces. At the time of the incident, the heat guard and insulation had been removed. Mr Ursino was aware that the heat guard over the output pipe had been removed, but the melter was not locked out and removed from service. Instead, operation of the melter continued while workers drilled out blockages of dried bitumen from the output pipe, in order to use it.

32. Capital Lines did not provide adequate information, training, and instruction to workers on a safe system of work for operating and preparing the melter for use. In particular, Capital Lines did not provide adequate information, training, and instruction to Ms Jitts and Mr Dickey concerning the PPE required to be worn when undertaking work on the melter. A general induction when workers commenced employment included a quiz on safety issues which did not address the risks associated with operation of the melter or the control measures to manage them. Ms Jitts, Mr Dickey, Mr Ursino, and Mr Nicholls had signed the SWMS, but were not provided with any information or training on it. Ms Jitts did not recall being shown any part of the SWMS besides the signature page.

33. Further, Ms Jitts had not completed the relevant Capital Lines RRPM training module, or any other formal training in relation to the melter. Mr Dickey had completed the RRPM training module, but at the time of the incident, he was not aware of the existence of the trigger lock on the melter’s applicator gun. No record of attendees at a training session on the use of the melter conducted by Sealants & Pavements Adhesives Pty Ltd (SPA) on 11 July 2022 was kept.

34. The supervision of the work at the Site was inadequate. Mr Ursino, the appointed Team Leader, had a first aid certificate and had received training on, among other things, handling construction materials, carrying out site-based risk control processes and supporting plant operations. He had approximately three years’ experience as a Team Leader. However, he was not aware that it was his responsibility to ensure that workers undertook work at the Site in accordance with the SWMS and other safe work procedures. He permitted Ms Jitts to undertake work on the melter without wearing the required PPE or being trained to do so. At the time of the incident, he was on his mobile phone and not paying attention to the work being performed on the melter.

Systems of work after the incident

35. After the incident, Capital Lines installed a new applicator gun for the melter and reinstalled the heat guard over the output pipe. Capital Lines also installed an isolation safety switch on the kettle end of the melter that, when activated, shut off the melter’s pump and prevented material from being pumped even when the trigger on the applicator gun was pressed. The isolation switch is accompanied by a light that flashes green when the melter is in ‘safety/maintenance mode’ and the applicator gun is locked out. Warning stickers were installed at four different locations on the melter.

36. In addition, Capital Lines revised its SWMS for RRPM installation to specifically refer to the activity ‘Inspection and de-blocking of hoses and gun’. To control the risk of burns, the revised SWMS requires workers to ensure that the maintenance mode switch is activated when inspections or maintenance of the hoses or gun are being conducted. It also requires workers to ensure that plant and equipment are isolated to prevent inadvertent discharge and that personnel are situated in an exclusion zone of at least one metre from the plant and equipment until isolation of the relevant plant has occurred. It clearly identifies the required PPE for the task of installing RRPMs as including long sleeves, long pants, steel-capped boots, reflective clothing, gloves, and safety glasses or face shield. On 7 March 2023, Capital Lines conducted a toolbox talk to provide workers with information about the revised SWMS and the requirement to wear correct PPE when undertaking work.

37. Further, Capital Lines added a new reporting procedure to its electronic safety management system (SafeX) which workers could access online to report faults with plant or equipment, including the melter.

38. The manufacturer of the melter has since provided a complete replacement machine. It bears the same model number as the machine used at the time of the incident but is not identical to that melter.

Offender’s case on sentence

39. Capital Lines relied on the affidavit of Andrew Stewart affirmed on 14 May 2026. The following is a summary of his evidence, in addition to matters already set out in the ASOF.

40. Mr Stewart has operated the business for 19 years and takes the safety of its workers very seriously. He is a qualified tradesmen in the line marking and signage installation field with over 28 years’ experience.

Expression of remorse and contrition

41. On behalf of Capital Lines, Mr Stewart stated that he regrets the incident and fully acknowledges the harm suffered by Ms Jitts as a result of it. He accepted on behalf of Capital Lines that Mr Ursino did not provide adequate supervision to Ms Jitts, and that, as a General Labourer whose role was confined to traffic control, Ms Jitts should not have been conducting the works at all, particularly without wearing appropriate PPE and undertaking appropriate training on the plant.

42. Mr Stewart stated that Capital Lines had made attempts to contact Ms Jitts to check on her wellbeing and to see if it could assist in her return to work but had been unable to speak with her. Mr Stewart further stated that Ms Jitts did not return to work at Capital Lines following the incident.

About Capital Lines

43. Prior to November 2025, Capital Lines was a small sized business which had approximately 25 employees. However, on 7 November 2025, Capital Lines entered into an Asset Purchase Agreement (agreement) with Altus Traffic Pty Ltd (Altus). Under the agreement, Mr Stewart is required to provide ‘transition services’ to Altus for 12 months. He is restricted from being involved in any business activity in competition with Altus for five years. He does not intend to return to the industry at the end of the five-year period.

44. Capital Lines therefore no longer trades and has no employees. The intellectual property of the business has been sold, and its employees are now employed by Altus. Capital Lines leased all its assets from SPG as a trustee. Those assets were also sold to Altus as part of the agreement. Capital Lines therefore holds no assets at this point. However, it is still registered with the Australian Securities & Investments Commission. Mr Stewart states that he sold the business, rather than closing it down, to preserve the employment of his workers.

45. Mr Stewart’s evidence was that Capital Lines has approximately $180,000 in an ANZ bank account, being security deposits, and not cash that is available to Capital Lines. Mr Stewart stated that that money is, or will be, payable to Altus pursuant to the agreement. Mr Stewart’s evidence was that Capital Lines owes $155,220.55 to Altus for outstanding invoices for work on relevant projects before they were novated to Altus and it is therefore unlikely to have capacity to pay any fine imposed by the Court.

The circumstances surrounding the incident

46. In or around September 2021, Capital Lines received the plant from SPA at which time workers reported blockages and those issues were reported to SPA. However, due to Covid, SPA was unable to attend the Capital Lines’ worksite to conduct repairs. Troubleshooting information was instead provided by SPA to Capital Lines’ former mechanic, Mathew McCoy. On 12 June 2022, the late Murray Yardley of SPA attended the Capital Lines worksite and provided training on the use of the plant, including service of the blockages.

47. From July 2022 until 3 February 2023, no further blockages were reported to Mr Stewart prior to the incident. However, he accepted on behalf of Capital Lines that reports of blockages may have been reported directly to Mr McCoy and that if there were discussions between the late Mr Yardley and Mr McCoy about the plant, he was not privy to them.

48. Mr Stewart stated that Capital Lines’ only prior safety conviction concerned an incident which occurred on 20 September 2021 for which Capital Lines was fined $38,000 after an early plea of guilty.

Systems of work prior to the incident

49. Mr Stewart gave unchallenged evidence about the systems of work in place at the time of the incident, in addition to those set out in the ASOF. First, Mr Stewart stated that a physical copy of the WHS Management Plan, which contained first aid information, was located in the vehicle, and a soft copy was located on iPads. Secondly, the Team Leader led daily toolbox talks, in which general safety matters were discussed, before work on the road commenced. The talks were recorded on physical forms signed by the workers in attendance.

50. Mr Stewart’s evidence was that standard day-to-day procedure required a worker who experienced a problem or identified a safety risk while at work to approach their Team Leader. The worker and Team Leader would then take appropriate action to resolve the safety risk within the Daily Job Sheet, which was the Site-Specific Risk Assessment. If the issue was not resolved that way, the worker would notify senior members via a communications form known as the ‘ToDIForm’. This procedure is documented in Capital Lines’ Employee Handbook for Induction.

51. Mr Stewart provided an extensive list of the training undertaken by each of Mr Ursino, Mr Dickey and Ms Jitts prior to the incident. As a Team Leader Mr Ursino’s training included first aid and he also had his Traffic Control Work Training Card.

52. Mr Stewart stated that incident report forms were completed when a safety incident or injury occurred and that serious safety issues were reported to management, including himself. However, Mr Stewart’s evidence was that he was unaware of both the continuing issues with the plant at the time of the incident and the process by which the workers were cleaning it.

Systems of work after the incident

53. The measures taken by Capital Lines in response to the incident are recorded in the ASOF and summarised above. Mr Stewart’s evidence was that issues with the plant continued post-incident and Capital Lines continued liaising with the manufacturer. He considers that the complete replacement of the plant by the manufacturer in 2024 was because the plant was defective and could not be rectified.

Evidence at the hearing

54. During the hearing, Mr Stewart gave evidence that Altus had entered into an agreement with Capital Lines and SPG in November 2025 to purchase the business (the assets of which were owned by SPG) for $5 million plus the stock completion payment. Mr Stewart stated that that price was contingent on Capital Lines and SPG meeting certain contractual conditions, and they had already been told that they would not receive $700,000 of that money. Accordingly, notwithstanding the agreement, there was no guarantee that Capital Lines and SPG would receive that money. Mr Stewart stated that a further $500,000 of that money was being held back for 12 months while Capital Lines provided transition services to Altus, and so would not be payable until November 2026, and that he did not understand the detail of how it worked. Mr Stewart’s evidence was that the more than $3 million which was received from Altus for the assets went to SPG, a company owned by his wife and that “it got paid out on all the leases and stuff….it had to get all the leases and all the trucks and all that out of all their lease agreements.” Mr Stewart stated that it was his intention to provide the required transition services so that the $500,000 hold back amount would be payable in November 2026.

55. Mr Stewart stated that Capital Lines did not own any assets at all, that they had all been leased from SPG and that he did not have a copy of that documentation. Mr Stewart stated that he was a working director, and that his role was to work on the projects with the workers. The paperwork for Capital Lines was managed by his daughter and the paperwork for SPG was managed by his wife. When he was challenged about the fact that he had not produced any documentation to the Court to establish that Capital Lines had no assets, Mr Stewart stated that he “did not have much to do with that kind of thing” and that his accountant would be able to explain it.

56. Mr Stewart stated that Capital Lines had not made any money since July 2025, but that he would need to obtain the income and expenditure records to show that from the accountant. Mr Stewart was then asked about the ANZ bank statement annexed to his affidavit, which showed a balance of $179,166.86 in funds in a Business Extra account in the name of Capital Lines. Mr Stewart was asked about his affidavit evidence both that this was money being held to pay Altus and that Capital Lines had $155,220.55 owing to Altus for invoices in respect of work on Capital Lines projects completed by Altus, until those projects could be novated to Altus, and that the $180,000 in the account was security deposits held by ANZ, not cash available to Capital Lines.

57. When asked to explain this, by reference to the bank statement, Mr Stewart stated that he did not do any of the banking and that his affidavit evidence was what he had been told about Capital Lines’ finances. He stated that the monies available to Capital Lines were first a bank guarantee of $180,000 to Transport for NSW as a three-year warranty of the works completed by Capital Lines, not cash in the bank. Secondly, Capital Lines had also received money which was payable to Altus for work which they completed. When taken to the statement for the ANZ Business Extra account, he conceded that it was an operating account with deposits and withdrawals made in the period 17 March 2026 to 1 April 2026. Mr Stewart was then challenged that the document from Action Line Marking, a related entity of Altus, annexed to his affidavit, was in fact a statement showing invoices and not in itself an invoice. Mr Stewart did not know what these invoices were and stated that he had had no involvement in the transition of the business since November 2025.

58. Mr Stewart accepted that, due to his previous experience with SafeWork NSW, he was aware that, on entering a plea of guilty, Capital Lines would be sentenced and that this was likely to involve a fine. Mr Stewart denied that he knew that the sale of the business would impact upon Capital Lines’ ability to pay a fine and that this was part of his motivation for selling the business. He accepted that the payments shown on the bank statement from Huon Construction (approximately $50,000) and JSC Pty Limited (approximately $32,000) were monies received from construction companies but denied that there was any other income outstanding to Capital Lines.

Consideration

59. I have had regard to the objects of the WHS Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

60. I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).

61. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].

Objective seriousness

62. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (N**o 2) (1988) 164 CLR 465; [1988] HCA 14 at [472], [485]-[486], [490]-[491] and [496] (Veen (No 2)). At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

63. This task requires the Court to consider where the conduct of Capital Lines falls in the range of conduct covered by the offence: Baumer v T**he Queen (1988) 166 CLR 51; [1988] HCA 67 at [57]. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (RS Hulme and Harrison JJ agreeing at [75]-[76]):

“This [assessment] will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie.”

64. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

65. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].

66. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively.

67. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for N**ew S**outh W**ales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Silver City). Under the heading “Assessment of Risk”, Basten JA said:

“[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 on assessment of all those factors.”

68. Further, at [42] his Honour continued:

“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 little, if any, cost.”

69. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“…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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 mitigating steps could have been taken.”

70. The prosecutor submitted that this offence falls within the upper mid-range of objective seriousness having regard to the following factors which it asked the Court to take into account in making its assessment:

71. The foreseeable harm likely to be suffered by a worker exposed to the propulsion of hot bitumen activated through a trigger hose onto their face and body is very serious and was well known within the industry.

72. The availability of published industry guidelines was vast, and the offender had its own internal systems in place.

73. The SWMS regarding use of PPE was not enforced and that was the only safety system in place to control the risk arising from hot bitumen.

74. Safety measures were relatively easy and inexpensive for the offender to have implemented before the incident.

75. In oral submissions, the prosecutor pointed to the inherent danger in dealing with hot bitumen and the obligation of Capital Lines to inform itself as to how it should be managed. The prosecutor contended that the generic nature of the guidance material directed at plant in no way diminished Capital Lines’ responsibility in that regard.

76. Capital Lines submitted that the objective seriousness of the offence was at the top of the low range. In support of that submission, Capital Lines pointed to the numerous safety measures in place, which have been set out above. Of particular note are the trigger lock on the applicator gun, the provision of appropriate PPE, and a WHS Management Plan which contained instructions as to its use. Also of note is the documented Risk Assessment for the RPPM truck and the training session on the use of the melter conducted in July 2022.

77. Capital Lines accepted that the risk was reasonably foreseeable but at the low end of that range. It submitted that the guidance material available was “quite generic”. It further pointed to the fact that the Bitumen Procedure had not been adopted as a Code of Practice and that there was no evidence that Capital Lines was aware of it. It did not accept that the likelihood of the risk occurring was very high in circumstances where, for it to materialise, a worker would have to press the trigger at the same time that another worker was in the area of spray from the output pipe. Accordingly, Capital Lines contended that this was a very different case to Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, relied upon by the prosecutor as authority for the proposition that the offence was an objectively serious one requiring condign punishment.

78. In oral submissions, Capital Lines reiterated the lower end foreseeability of the risk in that it required a worker to inadvertently pull the trigger while another worker was standing in front of the output pipe (as the hose had been detached), and this was not something that would readily be anticipated. Capital Lines also emphasised that the Court’s focus should be the risk, rather than the nature of the injuries to Ms Jitts, which were its manifestation. It pointed to the safety measures that it had in place, which it accepted were inadequate and not properly supervised.

79. I accept that Capital Lines was not an employer that failed to have regard to the safety of its employees. However, its systems were seriously deficient in that the SWMS for the work did not identify (and therefore did not address) the risks associated with the use of hot bitumen nor was this addressed with the night crew in the toolbox talk on the day of the incident. The risk of injury to workers as a result of contact with hot bitumen was patently foreseeable. As recognised by the offender, it is this risk which is the Court’s focus. That consideration is not confined to the manner in which it materialised on the night in question. Given the foreseeability of the risk, these oversights are significant.

80. As to what occurred, the applicator gun had a trigger lock but as Mr Dickey did not know how to use it, it provides little by way of mitigation. In addition, the heat guard had been removed, yet the requirement to wear proper PPE was not enforced. There was no other safety system in place to protect workers from burn injuries. Conducting maintenance or repair work on plant without isolating it from its power source is inherently dangerous. The Team Leader apparently did not understand that his role included ensuring that the work crew complied with the offender’s safe systems of work. It is clear from the CCTV footage that he was distracted by his phone and paying no attention at all to what was occurring right in front of him until the incident occurred. The incident that occurred was therefore the result of multiple failures.

81. However, I do not accept the prosecutor’s submission that the manifestation of the risk was “very likely”. The evidence is that workers had been repeatedly dealing with blockages in the melter over a period of time before the incident occurred. What makes this offence so egregious is that Ms Jitts was engaged as a General Labourer whose role was limited to traffic management. She should never have been permitted to become involved in work on the plant. There was accordingly a total failure of supervision, both because Ms Jitts was permitted to undertake work on the plant, but also because workers were permitted to undertake work without wearing PPE properly. Taking all of the above matters into account in the manner indicated, I find that the objective seriousness of the offence falls well within the mid-range.

Aggravating factors

78. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].

79. I have considered the Victim Impact Statement of Kailey Jitts, dated 3 June 2026. In it, Ms Jitts details the life-changing physical, mental, emotional and financial effects of her injuries, sustained at just age 20. The photographs annexed to that statement show permanent scarring to Ms Jitts’ face, hands and right forearm, as well as the scarring which is the result of the skin grafts taken from her right thigh. The significant burn injuries sustained by Ms Jitts have had a profound impact on every aspect of her life, both personally and in her relationships with her family and friends. Her requirement for significant medical treatment, including surgeries, continues more than three years after the incident. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. As conceded by the offender, the injuries sustained by Ms Jitts, and summarised in the ASOF, are plainly sufficient to establish the aggravating factor.

80. Capital Lines has a prior conviction which relates to an incident in which a worker was run over by a truck on 20 September 2021. The prosecutor contended that this was an aggravating factor, pursuant to s 21A(2)(d) of the CSP Act, given the common themes of unsafe operation of plant and inadequate supervision of workers. In Meis v R [2022] NSWCCA 118, Simpson AJA, (with whom Rothman and Button JJ agreed), held as follows at [24]:

“By s 21A(1)(a), (b) and (c), respectively, of the Sentencing Procedure Act a court, in determining the appropriate sentence for an offence, is required to take into account such aggravating factors itemised in subs (2) as are known to the Court, such mitigating factors itemised in subs (3) as are known to the Court, and any other objective or subjective factor that affects the relative seriousness of the offence. A suffix to subs (1) emphasises that the matters itemised in subss (2) and (3) are ‘in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.’ By subs (4) the court is not to have regard to any aggravating or mitigating factor in sentencing ‘if it would be contrary to any Act or rule of law to do so’. These latter provisions have been taken to mean that common law sentencing principles are unaffected by the specification of aggravating and mitigating factors: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [56]-[57], [103] and [118]. The effect of subs (4) is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy; it was the intention of Parliament to replicate the common law: R v Wickham [2004] NSWCA 193 per Howie J (with whom Bell and Hislop JJ agreed) (at [23]); see also Johnson v R [2004] NSWCCA 76 at [33].”

81. In Veen (No 2*)*, the High Court held at [477]:

“…[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell…The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

82. The prosecutor accepted, and I find that a single prior conviction over a period of almost 20 years of operation falls short of demonstrating “a continuing attitude of disobedience to the law” such as to attract the application of Veen (No 2) that “retribution, deterrence and protection of society may indicate a more severe sentence is warranted.”

Mitigating factors

83. The previous incident, which also resulted in significant injuries to a worker, occurred less than 17 months prior to the incident giving rise to the instant proceedings. I therefore do not consider the offender’s prior record to be a mitigating factor, even accepting that it “is not all or nothing and may be a matter of degree” (Saunders v R [2022] NSWCCA 174 at [66] per Price J (Beech-Jones CJ at CL agreeing at [1])): s 21A(3)(e) of the CSP Act. The offender did not submit otherwise.

84. Capital Lines demonstrated its good character in the steps that it took following the incident: s 21A(3)(f) of the CSP Act. Notwithstanding its relatively recent criminal antecedent, I also find that the offender is unlikely to reoffend (s 21A(3)(g) of the CSP Act) as it is no longer trading.

85. The offender contended that its prospects of rehabilitation have a role to play in sentencing, in terms of its rehabilitation as a lawful entity, notwithstanding that it has ceased to trade. The promotion of an offender’s rehabilitation is an object of sentencing (s 3A(d) of the CSP Act). An offender’s prospects of rehabilitation go to an ability of an offender to establish or re-establish themselves as law abiding: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [122] per McClellan CJ at CL. As Capital Lines no longer trades, I cannot find, even on the balance of probabilities, that it has good prospects of rehabilitation (s 21A(3)(h) of the CSP Act). That is not to say that such prospects are poor. It is simply that the factor is forward looking (Alenezi v R [2023] NSWCCA 283 at [24] per Basten AJA (with whom Adamson JA and Sweeney J agreed)), and in the absence of trading activity I am unable to reach such a conclusion.

86. Through Mr Stewart, Capital Lines has shown remorse for the offence: s 21A(3)(i) of the CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that its failures led to the injury of Ms Jitts.

87. Capital Lines entered a plea of guilty on 8 September 2025 to the charge particularised in an Amended Summons and ASOF of that date. The proceedings commenced on 28 January 2025, and the guilty plea came after several months of negotiation. Capital Lines is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson*; R v* Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. The plea of guilty was entered more than seven months after the commencement of the proceedings and on the fourth occasion on which the matters came before the Court.

88. While Capital Lines is undoubtedly entitled to a significant discount to reflect the utilitarian benefit of its plea, the timing of that plea is not one that ought routinely to attract the maximum 25% discount. It is the timing of the plea which is the largely determining factor. However, the offender indicated to the Court on 2 June 2025, being the second mention of the matter, that it was likely to resolve by way of a plea of guilty. The prosecutor accepted that it was a significant contributor to the delays which occurred thereafter and did not oppose the award of such a discount. Under those circumstances, I accept that a discount of 25% is appropriate: ss 21A(3)(k) and 22 of the CSP Act.

89. Capital Lines submitted that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it: s 21A(3)(m) of the CSP Act. The prosecutor also submitted that the offender’s cooperation in the investigation of this matter extended beyond mere compliance with statutory notices and included facilitating access by inspectors to the melter to prepare an expert report. The prosecutor stated that this attitude of the offender obviated the need for it to use the inspectors’ compulsory powers. While there is no evidence before the Court to this effect, given the concession made by the prosecutor, I accept that this mitigating factor has been established.

Deterrence

90. It was the position of both parties, and I find, that the penalty imposed in relation to this offence must provide for general deterrence. The prosecutor submitted that specific deterrence has a role to play given the offender’s prior conviction for a WHS offence which attracted a $38,000 fine and a lack of clarity about the offender’s position. The offender’s submission was that it would weigh very low in the balance because of the evidence that Capital Lines had ceased trading. Specific deterrence is designed to deter an offender from committing similar offences: s 3A(b) of the CSP Act. Notwithstanding Capital Lines’ antecedent offending, I give it no weight in the context of an entity which no longer has employees and has ceased to trade.

Capacity to pay a fine

91. Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of Capital Lines before imposing a fine. An offender that seeks to have a fine reduced on the basis of limited capacity to pay bears the evidentiary onus of convincing the Court that it should limit the amount of the fine. Capital Lines capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted due to the seriousness of the offence and the need for general deterrence. However, the fine imposed should not be so significant as to have a crushing effect in the circumstances of the offender: R v WC [2008] NSWCCA 268 at [61]; Rahme v R (1989) A Crim R 81 at [86] per Finlay J.

92. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance.

93. The onus lies on the offender to establish, on the balance of probabilities, that it has an incapacity to pay a fine: McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [24]. To do this, it “must bring evidence fully disclosing its financial state”: SafeWork NSW v Nsaire [2026] NSWIC 19 at [60] per Taylor J (Nsaire). His Honour continued by observing that in the context of a corporation, the Court might expect a schedule of assets and liabilities and a schedule of income and expenditure, together with documents such as bank statements, tax returns, statements of earnings and the like. Such material is to be appropriately scrutinised by the Court: Nsaire at [61].

94. The prosecutor’s position was that the evidence before the Court was unsatisfactory, in that the documents provided were piecemeal, providing a snapshot from March and April 2026. The prosecutor pointed to the absence of schedules of assets and liabilities, income, expenditure and tax records. The prosecutor’s contention was that the Court should have some scepticism about the evidence that all of the monies received from the sale to Altus were paid to SPG, and that there were monies owed to Altus, without proper documentation to substantiate it. The prosecutor emphasised the need for the penalty imposed to reflect the objective seriousness of the offending and the importance of not allowing a swift disposal of assets to stymie the Court’s sentencing capacity. The prosecutor further contended that the fine imposed in this matter should take precedence over the offender’s liability to third parties.

95. Capital Lines relied on SafeWork NSW v Denbro**k Constructions Pty Ltd [2023] NSWDC 407 at [89] per Strathdee DCJ as authority for the principle that the corporate equivalent of a crushing sentence would be to impose a fine that would put the offender into insolvency, forcing it to wind up. It contended that the sale of the business to Altus and the fact that it had ceased to trade significantly reduced its capacity to pay a fine. It accepted that there was evidence that it will receive a sum of money before the end of 2026 but submitted that it was unclear how much it would be. Capital Lines also submitted that the Court should take into account the requirement for it to pay the prosecutor’s costs.

96. Based on the evidence of the agreement with Altus, I accept, on the balance of probabilities, that Capital Lines has sold its business, that it no longer has any employees other than Mr Stewart, and that the business assets which it leased from SPG have also been sold to Altus. I accept that Capital Lines has ceased to trade and will not return to the industry. I also accept Mr Stewart’s evidence that a significant proportion of the more than $3 million paid to SPG for the assets used in Capital Lines’ business was required to cover the costs of prematurely terminating the lease of those assets from third parties.

97. Mr Stewart repeatedly stated in evidence that he had no involvement in or knowledge of the financial operations of Capital Lines and SPG and that the content of his affidavit was information provided by others (primarily his wife and daughter). He was unable to provide any further explanation of financial matters to which he had deposed in his affidavit. His evidence about the amounts received and outstanding pursuant to the agreement with Altus is difficult to reconcile. While I accept Mr Stewart’s evidence that Capital Lines and SPG are to receive no more than $4.3 million plus the stock completion payment, rather than the $5 million purchase price stipulated in the contract, I do not have reliable evidence as to how much has already been received and by whom, and how much is still outstanding and to whom. By Mr Stewart’s own admission, he did not understand the details of the agreement with Altus.

98. I accept that Capital Lines owes Altus approximately $155,000 for outstanding invoices related to projects which have been assumed by Altus and are yet to be novated. However, the ANZ Business Extra account held almost $180,000 in cash in April 2026. Plainly, this account is not the bank guarantee to which Mr Stewart referred in evidence. Further, there was no evidence before the Court about the financial position of SPG, which forms part of the family company structure. In particular, there was no evidence about the ability of Capital Lines to borrow funds from SPG, pending receipt of any outstanding payments from Altus.

99. Further, as Capital Lines was still receiving income from construction companies at the end of March 2026, I am unable to find on the balance of probabilities that Capital Lines has not since received further funds from current projects which will be payable to Altus in respect of work performed on projects prior to them being novated to Altus. Mr Stewart’s evidence was that Capital Lines now has no income whatsoever. However, the bank statement for the ANZ Business Extra account ended on 17 April 2026, less than three weeks after its most recent preceding payment from a construction company and well over a month before the hearing of this matter. Accordingly, Capital Lines has not provided sufficient evidence for me to be satisfied on the balance of probabilities that it has limited capacity to pay a fine.

100. In determining whether Capital Lines has limited capacity to pay a fine, I have taken into account that it will also be required to pay the prosecutor’s costs: SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 at [44] (per Wilson J with whom Beech-Jones CJ at CL and RA Hulme J agreed) (Williams Timber). However, as Capital Lines has not met its onus to establish that it has limited capacity to pay a fine, there is no basis to reduce the fine imposed by reason of an anticipated costs order, noting that the latter is compensatory rather than punitive in nature: Williams Timber at [37]; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; [1990] HCA 59.

Comparable cases

101. While acknowledging the limitations of comparative cases, particularly in the WHS Act prosecution context, Capital Lines provided three decisions in which the injured worker had sustained significant burns injuries, for the consideration of the Court. In SafeWork NSW v Danrae Remedial Services Pty Ltd [2025] NSWDC 70*,* a worker suffered burns while applying a highly flammable adhesive to waterproofing on the balcony of a townhouse when vapour from the adhesive was ignited by a nearby heat gun. The risk was obvious and well known. The likelihood of it occurring was low but the consequences of the risk materialising included death. The steps which the offender could have taken to minimise the risk, and which were known to it, were simple and inexpensive. The injured worker recovered well and had no ongoing disability. The offender had a fine of $150,000 imposed after trial in the context of a maximum penalty of $1,782,579.

102. In Safework NSW v Hydromet Corporation Pty Limited; Safework NSW v Jeremy Perera [2020] NSWDC 82, the corporate offender’s “egregious failures” led to two workers being sprayed with 98% sulphuric acid when changing the hose on a lime tank at a water treatment plant. They suffered serious chemical burns. The risk was well known to the offender and the likelihood of it occurring was quite high. The potential consequences were catastrophic. The steps which the offender could have taken to minimise the risk, were well known to it and readily available. The offender had a fine of $225,000 imposed after a discount of 25% for an early plea of guilty in the context of a maximum penalty of $1,500,000.

103. In SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4, a worker suffered serious burns while using a grinder to cut the pipe of a waste oil tank in order to remove it from a pit. The risk was well known. The likelihood of it occurring was high and the consequences of it materialising included death. The steps which the offender could have taken to minimise the risk, and which were known to it, were simple and inexpensive. The Court determined that it was a mid-range offence. The incident occurred when a well-qualified supervisor engaged by the offender agreed that the offender’s workers would undertake work beyond the agreed scope of works and did not inform the offender of this. The incident occurred while performing this unforeseen work. This reduced the offender’s moral culpability for the offending. The injuries sustained by the affected worker resulted in significant “functional restriction” in addition to ongoing anxiety and emotional distress. The offender had a fine of $180,000 imposed after a 25% discount for an early plea of guilty in the context of a maximum penalty of $1,860,843.

104. Each of these decisions has significant factors which distinguish them from the instant matter and the fines imposed do not in any way define the “acceptable range” of fine to be imposed.

Penalty

105. Capital Lines & Signs Pty Ltd was convicted of the offence as charged, pursuant to an order that I made on 4 June 2026.

106. The appropriate fine is $160,000, which will be reduced by 25% to reflect the plea of guilty.

107. I make the following orders:

108. I impose a fine of $120,000.

109. Capital Lines & Signs Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

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

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