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[2026] NSWDC 270
General information, not legal advice.
District Court of NSW
2026-07-29
Russell SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2026] NSWDC 270
Hearing dates: 21 July 2026
Date of orders: 29 July 2026
Decision date: 29 July 2026
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) Fenner Dunlop Australia Pty Ltd is convicted.
(2) The appropriate fine is $250,000 but that will be reduced by 15% to reflect the plea of guilty.
(3) Order Fenner Dunlop Australia Pty Ltd to pay a fine of $212,500.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5) Order Fenner Dunlop Australia Pty Ltd to pay the prosecutor’s costs.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – appropriate to consider medical evidence in relation to whether injury was “substantial” per s 21A(2)(g) of Crimes (Sentencing Procedure) Act 1999 (NSW) COSTS – prosecution costs OTHER – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm instructions were being followed – failure to make reasonable enquiries that an adequate risk assessment was taken after changes to work process – failure to confirm whether mechanical engineer was consulted about relevant job features
Original judgment source is linked above.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411
SafeWork NSW v Boral Cement Ltd (No.2) [2026] NSWDC 88
SafeWork NSW v Steel-Line Garage Doors Australia Pty Ltd [2026] NSWIC 7
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Fenner Dunlop Australia Pty Ltd (Defendant)
Representation: Counsel:
J Stratton SC / B Docking (Prosecutor)
B Hodgkinson SC / N Read (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
HWLE Lawyers (Defendant)
File Number(s): 2024/54418
Fenner Dunlop Australia Pty Ltd (Fenner) was engaged to perform work related to completing the joint of a bucket elevator conveyor belt at a site operated by Boral Cement Limited (Boral). On 13 February 2022 the conveyor belt went into free run, over sped and a fluid coupling exploded. Mr Douglas Bennett was struck in the back of the head by exploding metal and suffered serious injuries.
Fenner has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Bennett to a risk of death or serious injury contrary to s 32 of the WHS Act.
The maximum penalty for the offence is a fine of $1,782,579.
“The risk was the risk to workers, in particular Mr Bennett, suffering serious injury or death as a result of being struck, hit, burnt or otherwise coming into contact with:
a. failed, cracked or exploding components of the hydraulic coupling; and/or
b. failed, cracked or exploding components of the cover or guard for the hydraulic coupling; and/or
c. hot hydraulic oil/fluid
whilst working in the vicinity of the conveyor belt of EL 13 during the work.”
“The defendant failed to ensure, so far as is reasonably practicable, the health and safely of workers, and in particular Mr Bennett, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:
a. Confirming with Boral and/or Nepean that the instructions in the Beumer Group Bucket elevator Installation Instructions section 5.3.8 and 5.3.9 of document BA-619080046-en dated 2019-08-05 were being followed, namely, how to mount the buckets to ensure the belt is in balance;
b. Making reasonable enquiries of Boral and/or Nepean to confirm that an adequate risk assessment had been undertaken of the change in work process requiring decisions on the number of buckets being mounted on the belt prior to the belt being lifted by the crane and before the inching or barring of the belt for the preparation of wire splicing and white metal casting, and if not satisfied that an adequate risk assessment had been undertaken, requiring Mr Bennett to stop work.
c. Confirming with Boral and/or Nepean that they had consulted, enquired or otherwise confirmed with mechanical engineer Jagdeep Singh Gill Gurcharan Singh aka Mr Jack Gill, specific information, instruction and/or guidance regarding the following prior to lifting the new belt into position:
i. the number of buckets, if any, that should or could be mounted on the belt prior to lifting and where they should or could be placed on the belt;
ii. the number of buckets, that had in fact been mounted on the belt prior to lifting and where they had been mounted;
iii. the appropriateness of the method of inching or barring of the belt occurring in the preparation of wire splicing and white metal casting having regard to (i) and (ii) above; and/or
iv. the potential hazard of the belt being unbalanced, free running or over speeding given the number and configuration of buckets mounted on the belt.”
The evidence tendered by the prosecutor SafeWork NSW (SafeWork) was contained in two folders (PX1 and PX 2). SafeWork also provided written submissions (MFI 1). The evidence tendered by Fenner was an affidavit by Mr Foley (DX 1).
The written submissions of SafeWork urged the court to have regard to findings made in the judgment delivered in summary trial of Boral: SafeWork NSW v Boral Cement Ltd (No.2) [2026] NSWDC 88. I decline to do so. That trial involved 17 days of evidence and submissions, hundreds of pages of transcript and thousands of pages of documents. Findings were made in the judgment concerning the credibility of some witnesses. Fenner pleaded guilty on Day 2 of that joint trial. Thereafter Fenner took no part in the proceedings. I have not looked back at that judgment, except to ascertain its medium neutral citation. This sentence hearing will only take into account the material tendered, and the submissions made.
The written submissions by SafeWork also asked the court, when considering parity, to have regard to the relative culpability of Fenner vis a vis Nepean Engineering and Innovation Pty Ltd (Nepean) and Boral. Boral has not yet been sentenced. When Boral’s case comes on for a sentencing hearing, the parties will be making submissions about objective seriousness. Until that happens, I will not be blundering into making findings about the relative culpability of Boral, based upon material put forward in this case by SafeWork and Fenner, acting in their own interests. It is most important that Boral does not feel that it has been prejudged, because findings about its relative culpability are made, as to which it has had no say. I will certainly consider parity as between Fenner and Nepean (which has already been sentenced).
The parties presented a Statement of Agreed Facts (PX1, tab 2) which is summarised below.
Boral conducted a business at the Boral Cement Facility located at Taylor Avenue, New Berrima (the site). The site was used by Boral in the manufacture and supply of cementitious products.
Boral was completing its annual shutdown at the site. During the shutdown Boral engaged Nepean to provide engineering services involving planned maintenance services pertaining to Bucket elevator conveyor EL013 (EL013) at the site.
The task to be performed was to remove the old conveyor belt on EL013 and complete the installation of a new conveyor belt and refurbishment or replacement of buckets on the belt (the task). Boral engaged Nepean to perform the task. Boral supervised Nepean in the performance of that task.
Boral engaged Fenner to perform the joining of the two ends of the EL013 conveyor belt, once it had been put back into position on the conveyor. Joining the conveyor belt involved splicing the metal core wires of the belt conveyor together and completing the permanent join by casting white metal into the joint.
WGC Cranes Pty Ltd (WGC) was engaged by Boral to provide a 500 tonne crane to lift the old conveyor belt from EL013 and then lift the new conveyor belt into position.
Beumer Group Australia Pty Ltd (Beumer), the manufacturer of EL013, was engaged by Boral to provide advice in relation to the work being performed on EL013, as the Original Equipment Manufacturer (OEM).
EL013 was used at the site to transport raw material as part of the process of making cement at the site. Numerous other bucket elevator conveyors were present throughout the site.
EL013 was installed in 1998 and was located at Pre-Heater Tower No 1, a structure 7 stories high. The conveyor of EL013 ran to the platform on level 7. The conveyor was 60.18m high from the bottom (the boot) to the top of the head chute, with a centre distance of 58m from the mid-point of the bottom pulley to the mid-point of the head pulley. It had a rubber steel wire cored conveyor belt that was 120m long. There were 229 buckets on the conveyor belt of EL013, each weighing approximately 25kg.
EL013's drive motor was located on top of a 2.2 metre high platform on Level 7, measuring approximately 4100mm wide and 4850mm long. The drive assembly was mounted on a steel frame and access to it was via a staircase.
The drive mechanism consisted of a large 3 phase electrical motor, a Voith Turbo Fluid Coupling (Voith Coupling), a 37.6 to 1 gear drive and an N-Eupex coupling. The electric motor connected to the Voith Coupling, was connected to the gearbox, which in turn was connected to the N-Eupex coupling and the head drive pulley of the conveyor.
The Voith Coupling had a design speed of 1500 RPM. The Voith Coupling was used to transfer rotational power from one shaft to another using transmission fluid. Its main components consisted of two bladed wheels, a pump impeller and a turbine wheel, enclosed by a cover. The Voith Coupling cover was approximately 360mm wide x 550mm deep x 530mm high and was made from 2mm plate steel and mesh. A constant amount of operating fluid was contained within the coupling.
During normal operation, the Voith Coupling was run by motorised equipment and was able to regulate the temperature within it. In the event the Voith Coupling ran at a high speed during normal operation and reached a temperature of 140 degrees Celsius, the motor would stop so that it did not overheat. If that failed, the Voith Coupling was equipped with 160 degree Celsius fusible plugs, designed to burst and release oil from the main chamber to protect the whole housing from cracking.
The conveyor belt gear unit was equipped with a brake, also referred to as a mechanical back stop. During operation, the brake prevented the conveyor belt from going backwards but did not prevent it from travelling forwards.
Mr Bennett had been employed by Fenner for approximately twenty years. He was employed as a level 3 conveyor belt technician. He was engaged to complete the joint in the new conveyor belt.
Mr Bennett was present on site to verify the position of the belt join and perform the task of permanently joining the belt.
The following workers were engaged by Nepean:
Martyn Patterson, Senior Site Manager
Chris Jansen, Mechanical Engineer
Brian Felix, Leading Hand Boilermaker
Brendan Slater, Boilermaker
Daniel Bevan, Boilermaker
Ben Patterson, Boilermaker (left prior to incident at 2pm)
Brad Cox, Fitter
Brad Astill, Fitter
Bed Marshall, labour hire fitter (left at 2pm)
Victor Toweel, Fitter
Mr Martyn Patterson was employed by Nepean as a Senior Site Supervisor and was the supervisor for the task of replacing the belt of EL013. Mr Jansen was required by Nepean to assist Mr Patterson in determining the scope of works and overseeing the work.
The following workers were engaged by Boral:
Michael Davis, Asset and Planning Superintendent, Major Shutdown Manager and Authorised Works Controller
Roger Ragg, Production Department Shift Worker
Daniel Burgess, Production Department Shift Worker
Paul Smith, Shift Superintendent and Authorised Plant Controller
Mr Ragg and Mr Burgess were shift workers who were generally not involved in maintenance procedures. On the day of the incident they were called in to assist with “inching and barring” the conveyor belt. The phrase “inching and barring” refers to moving the conveyor belt a small distance at a time, usually to perform maintenance.
Mr Davis was employed by Boral as Asset and Planning Superintendent and he was the Authorised Works Controller for the task of replacing the belt on EL013. Mr Davis was the lead or overall supervisor for the task of replacing the belt on EL013 on the day of the incident, and undertook various steps as part of this supervision, including but not limited to:
Consulting with Beumer regarding the methodology for removing and replacing the belt of EL013.
Reviewing and signing off, as the person supervising the work, a Safe Work Method Statement titled "SWMS EL013 - Replace belt buckets" dated 9 February 2022. This document was prepared by Nepean on Boral letterhead.
Engaging with Beumer regarding the progress of the replacement of the belt of EL013.
Mr Jagdeep Singh Gill Gurcharan Singh (Jack Gill) was employed by Beumer. Mr Gill had approximately 22 years of work experience in different countries, concerning bucket elevators and conveyors. Mr Gill would have normally been on site for the replacement but was unable to travel due to COVID-19 restrictions. Mr Gill provided remote support and online supervision by a WhatsApp group.
Beumer had been on site for previous belt replacements and had provided warranties for those replacements.
On 4 February 2022, prior to the commencement of the shutdown, Mr Patterson and Mr Jansen went to the site to determine the labour requirements and scope of the work to be completed on the conveyor. Fenner was not invited to, and did not, attend the site as part of the assessment.
Nepean developed a system of work in consultation with Boral for the task. This included the replacement of the bucket elevator belt and replacement of the buckets with refurbished or new buckets. The initial plan was to lift out the new conveyor belt, with all 229 buckets and the head roller attached. The 500 tonne crane was to be used.
Boral had made arrangements with WGC to provide a crane for the works. The estimated weight to be lifted had been provided to WGC by Boral.
On 7 February 2022 Mr Davis sent an email to Beumer representatives requesting instructions for the conveyor belt change. In return, Beumer sent an email to Mr Davis with photos showing the process of using a crane to lift a new conveyor belt into position. The photos depicted the lifting of a conveyor belt with all buckets mounted to the belt. Mr Davis subsequently forwarded the photos to Mr Patterson.
Mr Bennett commenced work for the EL013 shutdown work on site on Wednesday 9 February 2022.
In the days prior to 13 February 2022 the old conveyor belt was cut and removed from EL013 using the 500 tonne mobile crane supplied by WCG. Mr Bennett was present on 9, 11 and 13 February 2022 and on those days attended toolbox talks conducted by Nepean. He signed Toolbox Talk Record Forms.
On 10 February 2022 a meeting took place between Mr Gill (via Microsoft Teams), Mr Davis, Mr Bennett and Mr Patterson to discuss the belt change on EL013, including the procedure for completing the join on the belt.
On 10 February 2022, Mr Gill sent a copy of drawings, belt clamping instructions, joining instructions, the bolt tightening sequence and the Bucket Elevator Installation instructions via WhatsApp. The WhatsApp group had been set up by Mr Davis. The members of the group were Messrs Gill, Davis, Bennett, Patterson and Jansen.
The initial plan was that Fenner would assist Nepean with the join of the conveyor belt. However, on Friday 11 February 2022 Mr Bennett provided some further assistance in changing the conveyor belt and join on EL013.
Between 10 February 2022 and 13 February 2022, Nepean, Boral and WCG ascertained that the weight associated with the lift was greater than the estimated weight provided by Boral. The crane did not have sufficient height (stick height) to pull out the belt with all 229 buckets, in one lift.
Mr Slater stated that prior to the incident, when Nepean had run through the process with Boral, he had questioned Boral as to the original plan to remove the conveyor belt, as the paperwork provided depicted a different conveyor belt and had only indicated using 1 tonne slings. Mr Slater recalled that the weight of the lifting gear approached 5 tonnes and he asked Boral, “How much actually is this thing?” Boral did not provide precise information and referred to a photograph of the process being previously undertaken at a different worksite. The belt, with all buckets, drive and head pulley and lifting equipment attached, weighed approximately 9 tonnes.
The crane available on site was not capable of removing the belt due to the height, reach and weights involved. The plan for removing the conveyor belt was changed, to perform cuts in the belt and use belt clamps for its removal. The process of removing the belt was completed successfully in this manner.
On 13 February 2022, when Mr Bennett arrived at site he attended a Nepean toolbox talk and signed off. Mr Davis was present on site to supervise the work for part of the day. Mr Davis departed the site later that day. Mr Patterson of Nepean was supervising the work being undertaken.
The task being performed by Nepean on the day was to complete the installation of the new conveyor belt on EL013. A temporary join was to be made to the belt at the bottom. The conveyor was to be run to locate the join at the top of the head roller, to permanently complete the join. Boral had placed isolation locks from the control room on EL013 to prevent it moving while the belt was being installed.
During 13 February 2022 Mr Patterson, a WGC crane operator and Mr Davis met and discussed the installation of the new belt. Fenner was not invited to and did not attend this discussion.
During the discussion, the process was altered to allow 115 buckets to be removed from the belt to reduce the weight for the crane. This was a change from the crane methodology which Boral had previously devised. The same number of buckets were to be placed on each side of the belt, which was draped over the head pulley.
No change was made to the SMWS or JSEA by Boral or Nepean, even though the removal of the old belt and the installation method of the new belt had changed. No risk assessment was undertaken by Boral or Nepean to address the risk of the new belt becoming unbalanced and leading to a free run, or the risk of the failure of components of the conveyor belt, such as the Voith Coupling. Fenner did not make reasonable enquiries of Boral or Nepean to confirm whether an adequate risk assessment had been undertaken after the change in work process. Neither Boral nor Nepean consulted with Mr Gill about the changed process. Fenner did not confirm with Boral or Nepean that they had consulted with Mr Gill regarding the matters set out in paragraph 12(c) of Annexure A of the Amended Summons.
As a result, an estimated 115 buckets were removed from the conveyor belt so that the weight of the conveyor belt and head pulley could be lifted and installed. While Nepean personnel were removing the buckets Mr Bennett informed Mr Patterson of Nepean of his concerns that the buckets were not evenly distributed and that each time Fenner had replaced belts of this kind in the past, it had been with all the buckets removed.
The crane lifted the new belt with some buckets attached into position in the chute of EL013 using a jib attachment.
The buckets had not been removed evenly along the length of the belt. There were two lengths of the belt hanging down on both sides, with no buckets attached. Once the 115 buckets had been removed, only half of all the buckets were installed. This meant that once the belt was turned over the head pulley of the conveyor, one side of the belt would be carrying more weight than the other side of the conveyor belt. As it moved further over the head pulley, the weight of all 115 buckets was on one side of the belt.
Once the conveyor belt was placed in the chute of EL013, Mr Bennett and Mr Astill performed the initial temporary join of the two tail sections of the belt by splicing the metal core wires of the belt together. This task was performed, as required, at the bottom of the conveyor near the tail roller. Mr Gill verified the initial temporary join via WhatsApp.
At approximately 2pm Mr Patterson telephoned Mr Davis to inform him that Nepean was ready to rotate the belt in order to position the temporary join to the top of the head roller. When the temporary join reached the top of the head roller, a white metal casting was to be poured into the joint and allowed to set, to complete the permanent join of the belt.
In order to perform the join at the top of the belt on EL013, the conveyor had to be run in inching and barring mode, by a separate (auxiliary) motor connected to the gear box. This drove the gear box at a slower than normal speed.
Mr Patterson requested Mr Davis to arrange for the equipment to be de-isolated by Boral for this movement of the conveyor belt to occur. Mr Davis informed Mr Patterson to contact the control room to notify them that Boral workers needed to attend EL013 to inch and bar the belt. The Boral Authorised Plant Controller contacted Mr Burgess and Mr Ragg to attend EL013 to inch and bar the conveyor.
At approximately 2:53pm Mr Patterson spoke to Mr Davis to notify him that Nepean had removed their isolation locks and were awaiting Boral site workers to control the conveyor's drive and commence the next steps.
Upon this request, Mr Burgess and Mr Ragg attended EL013 and together with Messrs Cox, Felix, Bevan, Astill and Bennett, went to the top of EL013.
Mr Patterson was positioned with Mr Toweel at the base of EL013 keeping the area clear. He telephoned Mr Cox and Mr Felix to check they were in position on the top platform, to witness the belt being inched, in order to be able to put on the remaining buckets once the task of joining the belt was completed.
Mr Slater was on the lower platform of EL013 below the staircase, organising the oxy set in preparation for splicing the belt at the top of the conveyor.
Mr Bennett expressed concern that the belt was going to overrun and not end up where they wanted it to stop, so he suggested to Mr Burgess and Mr Ragg that an initial test run of the belt should occur to determine whether the belt would run on. One of the Nepean workers had asked Mr Ragg and Mr Burgess what would happen regarding the uneven number of buckets on the conveyor belt and what would occur if the belt took off or did not stop. He was informed that the brakes would stop it.
Mr Ragg performed a test start. Mr Burgess stated that Nepean was to inform them when to stop the belt and when it was in position.
Mr Ragg and Mr Burgess asked the others if it was okay to start. Mr Ragg received the okay and started the conveyor to inch and bar the belt slightly. Mr Ragg removed the inch and bar isolation and started the conveyor. The fluid coupling remained connected to the gearbox during this time.
Within approximately 30 seconds, the conveyor belt began to speed up excessively. The workers called out to “stop” the conveyor. Mr Burgess pressed the stop button. The conveyor did not stop but picked up speed leading to an uncontrolled free run. The platform the workers were standing on started to vibrate. Mr Ragg heard the Voith Coupling start “screaming”.
Mr Felix described the sound as similar to a jet taking off. Mr Felix could see the buckets rotating over the head pulley and speeding up as the weight went to one side, and the belt went into free fall.
The workers yelled “run” and Messrs Burgess, Ragg, Cox, Felix, Bevan, Astill and Bennett tried to run down the single staircase away from the top of EL013 while the Voith Coupling was making a loud noise.
Mr Slater witnessed the workers running down the stairs to the lower platform. Mr Patterson witnessed the hatches at the bottom of EL013 blow up and cement dust particles went everywhere. Mr Patterson crouched down into a corner to avoid debris and cement dust.
As Mr Bennett moved past the motor at the top of EL013, it sucked him up against the fan. Mr Bennett was the last person to get down the stairs.
Mr Felix heard a loud bang and the join between the motor and the gearbox shatter. A catastrophic failure of the Voith Coupling occurred. It exploded sending out pieces of metal debris.
As he was attempting to get down the stairs, immediately behind Mr Felix, Mr Bennett was struck in the back of the head by a cast alloy fragment, the force of which knocked off his helmet.
As Mr Ragg made it to the lower level and got down onto the floor, he saw a helmet fly past his left shoulder. He turned around and saw Mr Bennett lying on the ground. Some workers ran over to check and make sure Mr Bennett was all right. Other workers including Mr Bevan took cover for a while due to the metal shrapnel being expelled. Cement dust filled the air. Mr Patterson was covered in cement dust at the base of EL013.
Mr Bennett was lying on the ground bleeding from his head. Mr Cox called Mr Patterson to inform him of what occurred and Mr Patterson called 000 before proceeding to the Boral control room to inform them. Mr Bennett was provided with medical treatment by onsite paramedics, before being transported to Bowral Hospital by NSW Ambulance.
At the time there were 114 buckets installed on the belt out of a total of 229. The post incident investigation indicated that there was no power supply to the main motor at the time of the incident. The conveyor belt itself had reached a high speed in a short time and as there was no mechanical contribution from the main motor, the Voith Coupling was unable to cool itself within time.
Post incident Nepean prepared an Incident Investigation Report. The report noted:
“The coupling connecting the gearbox with the drive unit exploded as a result of extreme speed, heat and conditions
Contributing Factors
Manufactures [sic] procedure of bucket elevator installation instructions were not followed exactly as they should have been.
Absent or Failed Defences
Incorrect Crane used at the beginning of the job requiring removing half the buckets which meant uneven load when inching took place causing the belt to take off and become unstoppable and uncontrollable.”
“... the new belt clamping which was done in the boot section was being driven with the inching drive to the top section of the drive pulley for the preparation of wire splicing and white metal casting. Due to the unbalance of the buckets, the bucket elevator [went] into a free run and this caused the fluid coupling to crack under pressure. The fluid coupling is equipped with 160C fusible plugs to burst the hot oil out, but the fluid coupling housing cracked before the fusible plug could burst the hot oil out. The debris pierced through the fluid coupling metal cover and hit a worker...”
“During the process of refitting the new belt, the belt began to move rapidly in an uncontrolled manner. The rapid movement of the belt appears to be related to an uneven distribution of bucket weight on the replaced belt. A failure of the fluid coupling occurred during the uncontrolled movement. Metal fragments were ejected from the fluid coupling, with some of those fragments contacting the back of the helmet on the head of a contract worker. The contract worker sustained a head injury and was transported to hospital.”
Post incident inspection of the buckets by SafeWork found:
No buckets could be observed attached to the belt, when looking down into the enclosed elevator housing.
The metal cover for the fluid drive coupling had sustained a significant impact. The cover was split and twisted out of shape.
Post incident, Boral Lead Engineer & Design Manager Mr Jonathan Charlesworth estimated that the Voith Coupling was rotating an estimated 10,000 RPM. This was 8,500 RPM faster than the estimated normal 1,500 RPM.
Mr Gill concluded that the conveyor belt was operating at a speed beyond its normal RPM, which subsequently led to the failure of the coupling.
The EL013 conveyor belt had been last changed in February 2017. The conveyor belt had been replaced three to five times prior to that. EL013 had one gearbox change prior to the incident.
Fenner had not previously been involved in any belt changes on EL013 or an elevator conveyor at the site. Fenner had been involved in changing the belt of four of the other types of conveyors located on the site.
Fenner and Nepean were competitors. Fenner had performed numerous conveyor belt changes on different conveyors at various locations since 1980. Fenner had its own systems of work for use when it undertook conveyor belt changes.
A Beumer belt replacement travel report sent to Boral dated 7 February 2017, referring to the belt replacement of EL013 in February 2017, noted that the work was performed using the method set out in the Beumer Manual. This involved removing the old buckets, connecting the old belt to the new belt, and then winding in the new belt. The process took two weeks to complete by Boral. The travel report set out the method used by Boral on that occasion as follows:
“a. Dismantled all 229 buckets and open the top cover.
b. Lifted tension pulley to its highest position to allow more free space for new belt installation and connection.
c. Cut the existing clamping connection inside the bucket boot after dismantling all the bucket, connected new belt to the old belt and slowly drew the new belt in and pull the old belt out using electric winch that installed on the truck.
d. Clamped the belt in side bucket boot and turn clamping connection to the bucket head, tightened clamping connection with 500 Nm torques, spliced and cast clamping connection.
e. Installed 229 buckets with indentation depth 4 mm. There are some buckets where the intermediate plate is too deep; the indentation depth tightening has to be more than 4 mm to prevent loosening later.
f. Aligned the belt at tension pulley so that it runs at the centre where at drive pulley, the belt also run at its centre.”
Fenner was not involved in the 2017 belt replacement work, and this document was not made available to it prior to the incident.
Nepean had been provided with a copy of the Beumer Operating Instructions Manual for EL13 Belt Bucket Elevator document identifier BCBS Dwg 31934 (Beumer Manual) by Boral. The Beumer Manual specified, at 5.4.1, information for assembly of the belt with reference to “Afterwards, the buckets have to be mounted”. The extract from the Beumer Manual was shared through the WhatsApp group by Mr Gill. Mr Bennett was a member of this group.
Boral also had a document titled EL13 Belt Replacement which applied during the 2017 belt replacement of EL013. Section 5 "Technical Specification" at 5.3 provides installation stages which require the new belt to be installed and clamped prior to:
“m) Mount the buckets to the new belt as per Beumer instructions taking care again to monitor belt balance so as to avoid belt run back.”
Nepean had previously provided Boral with a Job Safety Analysis (JSEA) with respect to past work at Maldon, another Boral cement plant. The JSEA did not identify or address risks associated with the specific task of changing the conveyor and buckets, removing the buckets, inching the belt, or risks associated with free run of the belt.
Nepean completed a JSEA for “Bucket & Belt change out” dated 9 February 2022. The JSEA did not identify or address risks associated with the specific task of changing the conveyor and buckets, removing the buckets, inching the belt, and the free run of the belt.
Mr Jansen and Mr Patterson of Nepean had prepared a Safe Work Method Statement (SWMS) titled “SWMS EL013- Replace belt buckets” dated 9 February 2022 on a Boral SWMS template (Nepean SWMS).
The Nepean SWMS was signed onto by the Nepean workers and Mr Bennett. The Nepean SWMS said:
Remove hatches and hood.
Correct equipment for task and lift.
Secure belt to lead drum.
Use mechanical lifting aids.
Change buckets – a control being a mechanical aid/team lift crane.
The Nepean SWMS did not identify or address risks associated with the specific task of changing the conveyor and buckets, removing the buckets, inching the belt, and risks associated with free run of the belt. The Nepean SWMS did not refer to the Beumer instructions.
Fenner did not acquire a complete understanding of the work task as it was undertaken by Boral or Nepean and how that might impact the work required of Mr Bennett. Mr Cameron Clark, the Wollongong Branch Manager from Fenner was available to Mr Bennett to discuss any concerns Mr Bennett had about his work. Mr Bennett spoke with Mr Clark by telephone on 10 February 2022 and on 13 February 2022. Fenner was not in possession of the Nepean SWMS or JSEA until post incident.
Mr Bennett completed his own JSEAs during the job, however these documents were missing from his ute after the incident.
Mr Bennett stated to SafeWork that historically he was aware of belts similar to the belt on EL013 being installed from the bottom, and not with a crane, in accordance with the Beumer Instructions.
Mr Bennett did not feel comfortable with putting the buckets on the belt before installation because his concern was that when the conveyor started to run, it would not be able to cope with all of the weight. Mr Bennett informed Mr Davis and Mr Patterson that he did not like the idea for installing the belt. Mr Bennett recalls that he called Mr Clark and informed him that he was not happy with certain parts of the procedure taking place. Mr Clark recalls Mr Bennett making a general comment to him in a telephone conversation about Nepean along the lines of “the job is poorly organised” and “Nepean don't really know what they are doing”. Mr Clark informed Mr Bennett to continue to assist with the work process but if he identified a safety issue, he should stop the job and put controls in place.
Mr Bennett was in possession of the Bucket Mounting instructions in a manual dated 2019-08-05 which included at 5.3.8 “How to mount the bucket elevator belt”. Section 5.3.9 had been shared via the WhatsApp group on 10 February 2022. The “How to mount the buckets” section noted:
“Drawing-in hazard, as the bucket elevator belt moves involuntarily due to the weight imbalance. Distribute the buckets equally on the belt and mount them so as to ensure that the belt is in balance....
.... At first only a certain number of buckets is mounted so as to ensure that the belt is in balance. On bucket elevators with a height up to… 70m, about every 10th bucket is to be mounted… The remaining buckets are distributed evenly in the gaps and mounted.”
Fenner did not confirm with Boral or Nepean that the instructions in that part of the Manual were being followed.
Texts, photographs, diagrams and the installation manual were exchanged in the “EL13 belt replacement” WhatsApp group chat between 10 February 2022 1.23.41 pm to 13 February 2022 3:46:36 pm.
Neither Nepean nor Boral contacted Mr Gill to inform him that they had removed a number of buckets from the conveyor belt for the lift. Mr Gill was not informed the belt did not have buckets evenly distributed nor was he aware the initial belt had been cut for removal by the crane. Fenner did not confirm with Nepean or Boral that they had consulted with Mr Gill regarding the matters set out in paragraph 12(c) of Annexure A of the Amended Summons.
Neither Boral nor Nepean consulted with Mr Gill or asked for specific information regarding the number of buckets mounted on the belt of EL013, or where they were to be mounted and distributed on the belt. Boral and Nepean did not ask Mr Gill for advice on the method of inching or barring the belt, or the potential hazard of imbalance, or the belt free running, given the number and configuration of buckets mounted on the belt.
The backstop / brake was designed to prevent the conveyor moving in a reverse direction but was not designed to prevent the conveyor moving in a forward direction. No chain blocks were used by Nepean or Boral to hold the weight of the belt for EL013.
Mr Blair McNeill, Mechanical Engineer, provided a report dated 10 January 2024 and an Addendum dated 6 February 2024. In his reports Mr McNeill noted:
The estimated RPM for the bucket conveyor was calculated at 377 RPM, which exposed the coupling and gearbox to an approximate speed of 13,000 RPM. This is about 8 times its normal operational speed. Such an extreme overspeed is well beyond what the coupling was designed to withstand. It is reasonable to expect failure at such a high rotational speed due to the severe internal forces exerted on the housing of the coupling.
The hazard of the coupling potentially failing existed due to incorrect processes in fitting and managing the belt while there was an unbalanced weight distribution.
The PCBUs should have recognised the potential risk of the bucket elevator lacking safety controls to mitigate uncontrolled forward motion.
Failing to capture the actual tasks at hand in the SWMS led to the incident occurring.
Disconnecting the fluid coupling from the gearbox would have mitigated the risk associated with coupling failure due to overspeed. This disconnection isolates the coupling from the bucket elevator's rotation. As a result, the rotation from the bucket elevator is not transferred to the coupling.
Mr McNeill said in a report dated 8 August 2025 in response to an expert report served by Boral that the risk of the task of installing the buckets cannot be understood without considering the mechanical link between the main three-phase motor, the reduction gearbox and the fluid. If the elevator is rotated while the buckets are unevenly distributed, gravity will cause it to run away as the backstop only prevents reverse rotation and not forward rotation. If the conveyor or bucket elevator is allowed to free fall it will rotate the gearbox input shaft and hence the fluid coupling and drive motor well beyond their rated speed.
Mr Foley said that Fenner accepted responsibility for its failure to comply with its duty under s 19(1) of the WHS Act in relation to the incident on 13 February 2022. On behalf of the company Mr Foley acknowledged that Fenner failed to comply with its duty and that its failure was a substantial cause of Mr Bennett being exposed to a risk of death or serious injury.
On behalf of Fenner Mr Foley apologised to Mr Bennett, who was seriously injured as result of Fenner's failure to comply with its duty to him and to the Court for that failure.
Mr Foley set out the history of Fenner’s business. It traces back to 1890 and the manufacture of leather conveyor belts in Melbourne.
Over many years Fenner has grown to encompass all aspects of design, provision, overhaul and refurbishment of conveyor systems throughout Australia. Fenner has acquired smaller engineering and conveyor belt component manufacturing firms. Fenner provides services including personnel site training, conveyor inspections, conveyor maintenance, conveyor belt change outs, and conveyor system breakdowns on various sites across Australia.
In 2018 Fenner became a wholly owned subsidiary of the Michelin Group.
Fenner employs approximately 155 employees in New South Wales. Fenner has two service branches (one in Wollongong and one in Newcastle), a conveyor belt manufacturing branch located in Sydney and a specialist branch trading as ACE, providing engineering services to the mining industry in New South Wales.
The Wollongong branch services regional clients in industries including underground mining, coal washeries, steel manufacturing, hard rock mining, quarries, and cement mills. Approximately 34 workers are based in the Wollongong branch, in both mechanical and splicing workstreams.
Mr Foley set out the following features of the Fenner Safety System:
A Health Safety & Wellbeing team;
Health Safety Management System Framework;
Health and Safety Standards;
Work procedures;
Daily pre-start meetings and toolbox talks;
Consultation of external safety specialists to conduct risk assessments;
A Stop Work Authority campaign video;
National safety meetings (currently held quarterly);
Learning Management System;
Critical Risk Protocols;
Training and instruction of workers; and
Safe Act Observation program.
The extensive documentation exhibited to the affidavit of Mr Fenner demonstrates that Fenner has an impressive and comprehensive safety system. The evidence shows that it is a company which puts the safety of its employees first. This is confirmed by the fact that, even though Fenner has operated for many decades in a potentially dangerous industry, it has no WHS convictions.
Mr Bennett commenced employment with Fenner in May 2011. He left employment with Fenner in September 2019 and was subsequently re-employed on 2 November 2020.
Mr Foley set out the workplace training completed and qualifications held by Mr Bennett during his time at Fenner.
The Affidavit set out features of Fenner’s work at the site. Much of this is contained in the Statement of Agreed Facts.
Horizontal and incline-based systems were the most common conveyor belt type that Fenner worked on.
Prior to the incident Fenner had not conducted any maintenance on vertical bucket conveyors at the site, including EL013.
Fenner made Mr Bennett available to Boral at their request to assist with the join of the new conveyor belt. Mr Bennett was known to Boral management and they requested his assistance given his qualifications and expertise in belt splicing.
Following the incident Ms Emma Mulhern, National Injury & Wellbeing Coordinator visited Mr Bennett in hospital and ensured regular contact was maintained with him to check on his welfare.
Fenner assisted and supported Mr Bennett through his workers compensation claim. Recognising that the workers compensation scheme does not cover Mr Bennett’s full pre-injury income, Fenner has made top up payments to him. Up to 5 July 2026 Fenner has paid an additional $120,757.70 in top up pay.
Support was also offered to other Fenner workers following the incident.
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 (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. 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: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:
“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 the offending.”
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].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
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. 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.
The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 (Nash). Basten JA at [34], under the heading “Assessment of Risk” said:
“The sentencing judge commenced his consideration with the proposition that ‘greater 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.”
“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 [event] 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, costs.”
“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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”
My findings about the defendant’s level of culpability are based upon the following:
The risk was actually known to Fenner. Mr Bennett recognised the risk and conveyed this to Mr Clark. Further, Fenner should have known, by reason of guidance material, of the risk. The risk was entirely foreseeable, and indeed it was foreseen.
Once the conveyor belt was started, with the buckets distributed unevenly, the likelihood of the risk occurring was certain.
The obvious potential consequences of the risk were death or, as occurred, serious injury.
There were steps available which could have minimised the risk. They are the reasonably practicable measures pleaded in Annexure A of the Amended Summons.
There was no burden or inconvenience upon Fenner of implementing those steps.
The harm done to Mr Bennett was a serious injury which will have lifelong consequences for him.
The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.
Fenner did not have control of the site. Both Boral and Nepean had that control. Fenner was engaged to perform one specific technical task as part of the overall contract between Boral and Nepean. Mr Patterson of Nepean was the direct supervisor on the job.
SafeWork does not allege that Fenner should have taken direct action of its own to guard against the risk of harm. Annexure A of the Amended Summons pleads in par 12 that Fenner should have gone to Boral and/or Nepean to see that the job was done in accordance with the Beumer instructions. The pleaded failures of Fenner to comply with its duty under the WHS Act referred to Fenner confirming certain matters with Boral and/or Nepean, or making reasonable inquiries with Boral and/or Nepean.
I find that the level of culpability of Fenner is in the mid range.
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
The penalty must reflect the need for specific deterrence. Fenner is still conducting a business. Its operations involve design, provision, overhaul and refurbishment of conveyor systems and the continuing engagement of workers.
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.
SafeWork tendered three medical reports from the following medical specialists: Dr Mellick, consultant neurologist, Dr Wechsler, ophthalmic surgeon and Dr Curtin, plastic and reconstructive surgeon. Those reports provided detail over and above par 66 of the Statement of Agreed Facts which said:
“As a result of the incident Mr Bennett suffered multiple fractures to his skull, six broken ribs, moderate brain injury causing migraines and headaches, loss of vision, loss of hearing requiring hearing aids, bowel and stomach issues and numbness to the right leg and foot creating difficulties walking.”
No objection was taken to the tender of this material. Senior Counsel for Fenner submitted that, since Fenner conceded that the injury caused by the offence was substantial, the court should not take into account the detail in those reports. Senior Counsel for Fenner submitted that:
These reports were “just opinions”. That is so, but they are opinions by highly qualified medical specialists. The court is in a better position to gauge the significance of the aggravating factor by receipt of those opinions, especially compared to the type of very short (and often anodyne) statement concerning injury, disabilities and damage which usually appears in a Statement of Agreed Facts. If the defendant wanted to dispute the views expressed by these medical specialists, it could have tendered reports of its own. It did not do so.
Once the admission was made that the aggravating factor of substantial injury was established, consideration of such medical reports could “mislead” or “distract” the court. How or why the opinions could mislead or distract (particularly when they were admitted into evidence without objection) was not the subject of a submission.
This is “not a personal injury case”. That is so, but it is a criminal case where the existence of a substantial injury is relevant to sentencing.
Senior Counsel for SafeWork referred to the decision of Bellew AJ in SafeWork NSW v Steel-Line Garage Doors Australia Pty Ltd [2026] NSWIC 7. In that case it was an agreed fact that a worker had sustained serious leg injuries, including fractures to her left leg and degloving of the right leg, and had required multiple surgeries.
Bellew AJ said at [7] that “far more detailed evidence of such matters should be provided in any case in which injuries suffered by a worker form a part of the Prosecutor’s case”.
Senior Counsel for SafeWork summarised the medical reports in par 40 of the SafeWork written submissions (MFI 1). Dr Mellick said that it was clear that Mr Bennett suffered a brain injury and that the consequences involved impairment of cognitive functioning and mood control. He had not resumed work as a conveyor belt technician, and would be permanently unfit to resume his pre-injury employment. Dr Wechsler said that the interference with Mr Bennett’s vision was directly caused by the head and neck trauma suffered in the incident. Dr Wechsler said that Mr Bennett had suffered “a life changing, catastrophic injury on 13 February 2022 which affected multiple systems of his body.” Dr Curtin said that Mr Bennett had suffered permanent impairment due to scarring.
This is the very kind of evidence which Bellew AJ called for in the decision in Steel-Line. In my view I should take that evidence into account. The aggravating factor under s 21A(2)(g) of the CSP Act is that the injury, emotional harm, loss or damage caused by the offence was “substantial”. The word “substantial” encompasses a wide range of injuries. At the lower end of the range would be injuries which cause pain and suffering and require medical treatment for a short period of time, but from which a victim recovers. At the upper end of the range would be catastrophic and life changing injuries which are permanent, and which significantly affect a person’s ability to enjoy life and pursue employment.
Senior Counsel for Fenner submitted that Steel-Line was wrongly decided. I do not accept that submission. Firstly, I would defer to the wisdom of Bellew AJ, given his Honour’s extensive experience dealing with the most serious of criminal matters as a judge of the Supreme Court and sitting on the Court of Criminal Appeal on a regular basis.
Further, in Nash the Court of Criminal Appeal said at [43], in a WHS case:
“Of the relevant aggravating factors, one is an offence which involves “a grave risk of death to another person or persons”. This factor is satisfied in the present case. However, as exposing an individual to a risk of death or serious injury is an element of the offence, there are limited circumstances in which this aggravating factor can operate with respect to an offence under s 32 of the Work Safety Act. It is also an aggravating factor if “the injury … caused by the offence was substantial”. In this case, the injury caused to Mr Kuypers was very substantial. Although the injury was the materialisation of the risk, it was the risk which was an essential element of the offence, and not its materialisation. Accordingly, it is appropriate to take the nature and extent of the injury into account as an important aggravating factor.” (Emphasis added)
Fenner has no previous convictions: s 21A(3)(e) CSP Act.
Fenner is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Fenner has been in business since 1890.
Fenner is unlikely to re-offend: s 21A(3)(g) CSP Act.
Fenner has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
Fenner has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Bennett was caused by its actions.
Fenner gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.
All of these mitigating factors were conceded by SafeWork.
Fenner entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Fenner a 15% discount for an early plea, for reasons set out below.
The proceedings were commenced by SafeWork filing a Summons on 9 February 2024. The matter came before the court for directions six times later in that year. On 11 February 2025 Fenner entered a plea of not guilty and the case was set down for a four-week defended hearing commencing on 27 October 2025. The trial was to be a joint trial of the charges brought against Boral and Fenner, arising out of the same incident.
On 27 October 2025 the trial commenced. On 28 October 2025 Senior Counsel for Fenner requested an adjournment to obtain instructions. When the matter resumed, it was indicated that SafeWork sought leave to file an Amended Summons. Upon that summons being filed, Fenner pleaded guilty.
While the trial of Boral continued to a conclusion, the trial of the charge against Fenner was therefore disposed of in two days by the plea of guilty at an early stage of the joint trial.
The Boral trial occupied 17 days, being 15 days of evidence and two days of oral submissions. The evidence and the submissions were recorded in 1,248 pages of transcript. The exhibits and the MFIs were contained in 15 large arch lever folders (13 SafeWork folders, one Boral folder and three MFI folders).
It can be seen from the length and complexity of the Boral trial, which resulted in a judgment 548 paragraphs long, that the entry of a plea of guilty by Fenner on the second day of the joint trial led to a considerable saving of public time and expense. These matters have led me to conclude that there should be a 15% discount for the utilitarian benefit of the plea of guilty.
Boral and Nepean were also prosecuted for breaches of their health and safety duties arising under the WHS Act, relating to the same incident in which Mr Bennett was injured. Nepean pleaded guilty and has been sentenced: SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411. The appropriate fine was found to be $300,000, which was reduced by 25% to $225,000, to reflect the guilty plea.
Boral pleaded not guilty but was found guilty. Boral has not yet been sentenced. I have set out above my approach to the Boral case.
Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:
“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”
The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
It is appropriate for the court to consider the respective contributions of Fenner and Nepean. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
I find that Fenner was to a small degree less culpable than Nepean. Nepean was the supervisor of the task. It supplied Mr Patterson as the supervisor and most of the tradesmen. By contrast, Fenner was engaged to perform one specific technical job – joining the two ends of the new belt. That having been said, Fenner was the direct employer of Mr Bennett. Further, Fenner did not really back Mr Bennett up when he raised his misgivings with his manager.
I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s 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 as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:
“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”
My orders are:
Fenner Dunlop Australia Pty Ltd is convicted.
The appropriate fine is $250,000 but that will be reduced by 15% to reflect the early plea of guilty.
Order Fenner Dunlop Australia Pty Ltd to pay a fine of $212,500.
Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
Order Fenner Dunlop Australia Pty Ltd to pay the prosecutor’s costs.
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SafeWork NSW
Fenner Dunlop Australia Pty Ltd
(1988) 166 CLR 51
(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(2011) 34 VR 1
(2011) 244 CLR 462
(2010) 77 NSWLR 540
(2005) 228 CLR 357
(2011) 244 CLR 120
(2006) 66 NSWLR 566
(1988) 164 CLR 465
(2009) 186 IR 125
(2001) 109 IR 316