SafeWork NSW v Garben; SafeWork NSW v Stevens; SafeWork NSW v Crestville Holdings Pty Ltd

Catchwords: CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty
COSTS – prosecutor’s costs

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 19(2), 27(1), 31, 32

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

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Michael Garben (Defendant)
Simon Stevens (Defendant)
Crestville Holdings Pty Ltd (Defendant)

Representation: Counsel:
A Mykkeltvedt (Prosecutor)
P Barry (Defendants)
Solicitors:
Department of Customer Service (Prosecutor)
Lander & Rogers (Defendants)

File Number(s): 2023/335513; 2023/335520; 2023/335534

Judgment

1. On 13 October 2021 Crestville Holdings Pty Ltd (Crestville), entered a plea of guilty to an offence that Crestville, being a person conducting a business or undertaking who had a duty under s 19(2) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking, failed to comply with that duty and the failure to comply exposed persons, in particular Andreas Stephano Progulakis Araya (Mr Araya), to a risk of death or serious injury, contrary to s 32 of the WHS Act.

2. On 13 October 2021, Michael Garben (Mr Garben), being an officer of Crestville who had a duty under s 27(1) of the WHS Act to exercise due diligence to ensure that the company complied with its duty under section 19(2) of the WHS Act, failed to comply with that duty and the failure to comply with that duty exposed persons, in particular, Mr Araya to a risk of death or serious injury, contrary to s 32 of the WHS Act.

3. On 13 October 2021, Simon Stevens (Mr Stevens), being an officer of Crestville, who had a duty under s 27(1) of the WHS Act to exercise due diligence to ensure that the company complied with its duty under s 19(2) of the WHS Act, failed to comply with that duty and the failure to comply with that duty exposed persons, in particular, Mr Araya to a risk of death or serious injury, contrary to s 32 of the WHS Act.

4. The prosecutor tendered a Prosecution Sentence Tender Bundle (PSTB) which became exhibit A. After convicting the defendants, the prosecutor tendered two Victim Impact Statements. The first Victim Impact Statement is of Ms Kiah Berglund (Ms Berglund) dated 4 June 2025 which became exhibit B, and the second Victim Impact Statement is of Ms Jimena Olivares (Ms Olivares) dated 4 June 2025 which became exhibit C.

5. The defendant tendered an affidavit of Mr Stevens affirmed 30 May 2025 which became exhibit 1, an affidavit of Mr Garben affirmed 30 May 2025 which became exhibit 2, and a further affidavit of Mr Garben affirmed 30 May 2025 which became exhibit 3.

6. Both Ms Berglund and Ms Olivares read their statements in open court.

Background

7. There were provided to the court Amended Summonses and Agreed Statements of Fact (ASOF) in each matter. These provided the circumstances of the offending, to which I will now refer in summary.

8. Crestville operated an indoor climbing gym – Sydney Indoor Climbing Gym (Gym) at Unit 4C, 1-7 Unwins Bridge Road, St Peters, NSW. Crestville had three directors, Mr Garben and Mr Stevens who were both in charge of day-to-day operations, and Anthony Meer who was not involved in day-to-day operations.

9. As of 15 December 2021, the Gym employed 50 people in various roles including Gym Assistants and Supervisors responsible for the supervision of climbing activity throughout the Gym.

10. At the time of the incident, there were two dedicated climbing areas being the “main room” and the “new room”. There were several climbing methods that could be used including auto-belay. Auto-belay units would allow a climber to release themselves from the wall and be lowered to the ground in a controlled manner without the assistance of another person.

11. There were three auto-belay devices installed. Two in the new room (D-1511 and D-1876) and one in the main room (D-1877). Auto-belay D-1876 had been removed from service as at the time of the incident.

12. The auto-belay units were located at the top of the climbing walls and attached to a steel bar anchor. When not in use the lanyard, connected to the auto-belay unit, is attached via two carabiners to a belay gate situated approximately 1.5m from the ground. A climber would clip the carabiners onto their harness before starting a climb. The lanyard would automatically retract as the climber ascended.

13. The Gym had concrete flooring which, in the climbing areas, were covered by green interlocking impact attenuation matting used in climbing and sports gyms of around 35mm thickness.

14. Blue gymnastics mats measuring 400mm thick and 1800mm wide by 3600mm long were also placed in certain areas of the Gym including areas where climbers learn to lead climb and under the auto-belay devices.

The Incident

15. On 13 October 2021, an experienced recreational climber (Mr Araya) used auto-belay D-1877 in the main room to climb the relevant wall.

16. Mr Araya had attended the climbing gym 152 times as at the time of the incident.

17. On this day, the Gym Assistant roles were being fulfilled by Jason Gregory-Jones, Laura Chidgey, and David Johnson, all of whom were serving as reception staff. The Gym Supervisor was David Stone.

18. At approximately 11.20am Mr Araya was climbing a route in the main room using auto-belay D-1877. Mr Araya was climbing a 12.5m-high wall. There were eight possible routes located on that sector of the wall, ranging from easy to hard.

19. On the wall there was a sign indicating:

“Before Use, please ask staff for a safety demo if you haven’t used one before.

1. Clip BOTH carabiners into harness!

2. Untwist the yellow strap

3. Do a pull test; is the auto-belay pulling on your harness?

4. If it is not pulling, DO NOT CLIMB. Inform a staff member!

5. ALL ROUTES START ON THE FLURO YELLOW HOLDS BEHIND TRIANGLE!

6. When FINISHED – clip one carabiner back to”

20. There were extensive and significant warnings about climbing using the auto-belay which are set out in par 18 of the ASOF, including two signs located approximately two metres from the top of the wall that read:

“Danger!

TO PREVENT HAZARDOUS SWING DO NOT CLIMB PAST THING POINT WHEN USING THE AUTO BELAY!!!”

21. The climbing routes, on the wall that Mr Araya was climbing, were set by Crestville’s route-setting team, Liam Healy and Zuzana Zbrankova, approximately four months before the incident.

22. During Mr Araya’s climb, the lanyard that was supporting Mr Araya’s weight snapped, and he fell approximately 12 metres to the floor, lost consciousness, and died from the injuries he suffered as a result of the fall.

23. A post-incident inspection of the auto-belay systems was undertaken by SafeWork NSW inspectors and investigators.

24. After the incident NSW Police removed all three auto-belays which were subsequently examined and tested by SafeWork NSW and NSW Fire and Rescue Technical Rescue. Inspector Beacham from SafeWork NSW observed the following in relation to auto-belay D-1877:

25. That the eyelet that connects the carabiner to the lanyard had wear and tear.

26. The tri-lock carabiner gate was not fully closing as designed.

27. With the lanyard webbing there was wear and tear, considerable edge waviness and abrasion and softening of the webbing and progressive thickening for the last 800mm from the break. The black wear indicator on the climbing wall side of the lanyard had worn away.

28. Upon removal of the brake drum housing cover it was found that the lanyard drum and centrifugal brake rotated freely.

29. Upon removal of the rear housing cover it was found that the lanyard was tightly jammed onto the lanyard drum and could not be easily unravelled.

30. There was an accumulation of debris inside the nozzle area.

31. The nozzle was worn on the edge that would have faced the climbing wall.

32. The manufacturer’s warning label and the label showing the next service due date (July 2021) was legible and intact.

33. An inspection of auto-belay D-1511 was also conducted, and Inspector Beacham observed the following:

34. The tri-lock carabiner gate was not fully closing as designed.

35. The connectors to the carabiner to the lanyard had wear and tear.

36. The lanyard webbing was worn with the greater lanyard wear approximately 2100mm to 3700mm from the carabiner end. The least wear was at the other end of the lanyard which connects to the auto belay drum and appeared as new.

37. The greatest wear was on the lanyard webbing edge facing the climbing wall.

38. The manufacturer’s warning label and the label showing the next service due date (September 2021) was legible and intact.

Previously Identified Issues with Auto-Belay D1877

26. The auto-belay D-1877 was installed on 2 August 2019 and had undergone a formal in-house inspection on 24 January 2020 performed by Matt Brown (Mr Brown), a Crestville employee. D-1877 was due for a major service in July 2021 which was not undertaken.

27. From the date of its installation to the date of the incident, there were four entries entered into the “spinners and ropes” inspection and maintenance log kept at the Gym (Maintenance Log) noting issues with auto belay D-1877 not taking up the slack in the lanyard for the last one to two metres of the climb.

Previously Identified Issues with Other Auto-Belay at the Gym

28. In August 2020, auto-belay D-1511 was sent to Climb Oz for inspection due to the auto-belay being slow in retraction. Halil Ngah (Mr Ngah) inspected the auto belay and identified that retraction was slower than optimal, but apparently well within the expected specifications.

29. Separately, the pinion gear that drives the centrifugal brakes of the auto-belay was observed to have visible wear that was outside the acceptable range. In addition to cleaning the unit and replacing the pinion gear identified as worn, Mr Ngah replaced the lanyard during the service.

Guidance Materials

30. There was guidance material available in relation to the risk of falling from height while utilising climbing equipment, namely the auto belay.

31. The Perfect Descent Operations Manual for auto-belay D-1877 provides a comprehensive set of guidelines.

32. Important examples are:

33. Part 6.0 states - “Any Perfect Descent Climbing System that shows signs of excessive wear, deterioration, malfunction, or insufficient retraction force must be removed from use and marked as ‘Unusable’ until returned to a C3 Manufacturing approved service centre for repair”.

34. Part 11.1 states - “The Perfect Descent Climbing System comes equipped with a line that may be replaced in the field by the owner/operator. A line should be replaced immediately if it appears damaged, excessively fuzzy, worn, sun bleached, if the wear indicators have begun to fray, if there is corrosion on the carabiner or if the carabiner fails to operate properly”.

35. Part 11.3 states - “Proper maintenance of the Perfect Descent Climbing System includes regular cleaning of the unit housing to remove dust and chalk. A Perfect Descent Climbing System that is under continual use should be cleaned weekly”.

36. The Quick Reference Guide also provided instructions for Daily, Weekly and Formal Inspections.

Systems of Work Prior to the Incident

34. Crestville had several policies and procedures in place including an operations manual that included a number of safety-related requirements.

35. Workers were also provided a safety induction and training on cleaning and simple maintenance processes, the process of reporting and logging maintenance issues and the conduct of safety rounds.

Deficiencies in the System of Work

36. There were no systems in place to ensure that the auto-belays were subject to regular daily and weekly inspections or more comprehensive inspections every six months. There was no system or procedure in place to ensure that an adequate record of inspections of the auto-belays was maintained.

37. There was no system or procedure in place for ensuring and tracking the factory servicing of the auto-belays in accordance with their service due dates. There was not a routine system of cleaning the auto-belays in accordance with the Operations Manual.

38. There were insufficient processes in place to ensure maintenance issues observed by workers or other persons were adequately reported and resolved. While a maintenance log was kept at the Gym, steps taken to resolve or address issues were not always clearly identified and there was no procedure of verifying that workers responsible for maintenance routinely checked the log to address any outstanding tasks.

39. No training, instruction or information was provided to workers with respect to inspecting and maintaining the auto-belays. Workers were not trained as to the requirements of the auto-belay devices’ respective operations manuals including identification of excessive wear of the lanyards.

40. Climbers were not provided guidance (of the type contained in the auto-belay lanyard labels that had been cut off) that they should discontinue climbing immediately if slack developed in the lanyard when using auto-belays.

Steps Taken After the Incident

41. Following the incident, Crestville permanently removed all auto-belay systems from the Gym and undertook a review of its inspection and maintenance procedures. It implemented a new Inspection and Maintenance Policy to document those procedures. The policy provides for daily inspection, issue logging and remediation, quarterly operational inspections, and external annual testing and inspections.

42. Crestville engaged an external agent to assist in an overall review of the business’s documentation to assist controlling risks in a recreational climbing context and has implemented a cloud-based system to assist in recording operational inspections and equipment changes at the Gym. The new system allows each of the ropes present in the Gym to have its own log and allows pictures to be uploaded.

Simon Stevens and Michael Garben as Directors

43. Mr Brown, a Crestville employee in charge of maintenance of the auto-belay units left the company in early 2020.

44. Prior to the incident, neither Mr Stevens nor Mr Garben did, in their capacities as Directors of Crestville, ensure through requirements, direction or instruction:

45. That Crestville had appropriate systems in place to ensure that the auto-belay system was subjected to appropriate inspections and factory servicing.

46. That Crestville provided appropriate information, training and instruction to workers in relation to the inspection of the auto-belay system and associated lanyards.

47. That Crestville provided appropriate instructions to climbers that they should discontinue climbing immediately if slack developed in the lanyard when using auto-belays.

48. That Crestville developed, implemented and enforced a system of appropriately tracking the resolution of maintenance issues.

49. Work, health and safety issues were not regularly discussed at directors’ meetings or appropriately recorded in meeting minutes.

Crestville’s Failure to Comply with the Section 19(2) Duty

46. The Amended Summons provides that Crestville breached its s 19(2) duty by failing to take a wide variety of reasonably practicable measures to reduce or eliminate the risk:

“(a) Developing, implementing and enforcing a system of inspections of the auto-belay systems in accordance with the Perfect Descent Climbing Systems Operations Manual (Operations Manual) and Quick Reference Guide including:

(i) Daily and weekly inspections; and

(ii) Comprehensive inspections every six months by a competent person;

(iii) Implementing a system of tracking of the inspections conducted in accordance with (a)(i) and (a)(ii) above.

(b) Developing, implementing and enforcing a system of factory servicing of the auto­belay systems so as to ensure the auto-belay systems were subject to a factory service when warranted having regard to their condition and in any event at intervals not less than once every 2 years;

(c) Verifying that lanyards employed with the auto-belay systems were removed from service immediately if they appeared damaged and/or when the black wear indicators had begun to fray;

(d) Verifying that auto-belay systems were removed from service in the event inspection revealed insufficient retraction force or any other issue that may interfere with the safe operation of the auto-belay systems;

(e) Developing, implementing and enforcing adequate processes for resolving any maintenance issues observed by workers or other persons which included:

(i) The identification of actions or steps taken to resolve or address each maintenance issue; and

(ii) A procedure for workers responsible for maintenance to routinely check the maintenance log to address any outstanding actions or steps;

(f) Providing information, training and instruction to workers in relation to inspection of the auto-belay system in accordance with the Operations Manual;

(g) Providing information, training and instruction to workers in relation to inspection of lanyards used in the auto-belay systems, including the identification of excessive wear by reference to the Operations Manual; and/or

(h) Ensuring that climbers intending to use the auto-belay systems were appropriately informed that they should discontinue climbing immediately if slack developed in the lanyard by:

(i) Incorporating an instruction of that effect into the signage on the wall visible from the ground in the area of the auto-belay; and/or

(ii) Directing staff to provide such an instruction to climbers who intended to use the auto-belay units.”

The Directors’ Failure to Comply with their Section 27(1) Duty

47. The relevant Amended Summonses provide that Mr Stevens and Mr Garben breached their s 27(1) duty by failing to take the following reasonably practicable measures to reduce or eliminate the risk:

48. Ensuring that the company had in place and used appropriate processes and resources to minimise the risks to health and safety from work carried out as part of the conduct of the company’s business or undertaking by:

(a) requiring, instructing or directing the company to develop, implement and enforce appropriate systems of inspection of the auto-belay systems in accordance with the Operations Manual and Quick Reference Guide including a system for tracking those inspections; (b) requiring the company to ensure the auto-belay system was subject to appropriate factory servicing; (c) requiring, instructing or directing the company to provide information, training and instruction to workers in relation to the inspection of the auto-belay system and inspection of the lanyards used on the auto-belay system; (d) requiring, instructing or directing the company to ensure that climbers were appropriately informed that they should discontinue climbing immediately if slack developed in the lanyard by:

(i) incorporating the instruction to that effect into the signage on the wall visible from the ground in the area of the auto-belay and/or (ii) directing staff to provide such an instruction to climbers who intended to use the auto-belay units.

48. The defendants accept that the risk to safety as pleaded was foreseeable. In my view it is obviously foreseeable. The defendants submit however that viewed objectively, when considering the nature of the offending, the safety systems in place during the relevant period that addressed the risk meant the likelihood of the risk eventuating was somewhat reduced. During the relevant period Crestville had in place operations manuals with respect to equipment monitoring and maintenance.

49. I note this submission, with respect to what measures were in place in regard to the monitoring and maintenance of the equipment, was made only in the context of the matters that guided the defendant’s approach to this activity at the time.

50. The defendants do not submit that as a result of these measures being in place during the relevant period that the risk was minimised so far as was reasonably practicable.

51. The defendants have admitted that the measures in the Amended Summons were reasonably practicable measures during the relevant period. I accept that there was signage throughout the Gym with pre-training requirements for the use of the auto-belay system. I accept that training and induction of workers was provided in relation to following:

52. Top rope laying.

53. The process of logging maintenance issues.

54. The visual inspections of the equipment including the ropes by the staff during daily walks was a system in place at the time of the incident but clearly was not enforced or implemented sufficiently to enable the auto-belay that caused the incident to be detected.

55. By their plea the defendants accept the gravity of the potential risk to safety was objectively serious, and was reasonably practicable.

56. The defendants further accept control measures as set out in the Amended Summonses were reasonably practicable.

Sentencing

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

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

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

Objective Seriousness of the Offence

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

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

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

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

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

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

62. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

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

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

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

65. His Honour further observed at [42]:

“The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

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

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

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

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

Matters Relevant to Objective Seriousness for a Section 32 Offence

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

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

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

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

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

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

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

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

Matters Relevant to Determining the Culpability of the Defendants

Overall Seriousness - Crestville

77. There was an extremely obvious risk to safety. Equally obvious was the potential for serious consequences to result from that risk.

78. Measures to reduce that risk were readily available but were not taken. The deficiencies in Crestville’s systems were many and varied. The consequences of those deficiencies were, ultimately, catastrophic.

79. Having regard to the ready availability of appropriate control measures, the serious risk to people associated with Crestville’s myriad failures, and the consequences that flowed, the offence was a very serious one.

Overall Seriousness – Mr Stevens and Mr Garben

80. The failures of Mr Garben and Mr Stevens are summarised in the relevant paragraphs of the ASOF.

81. Messrs Garben and Stevens, did not, in their capacity as directors of Crestville, ensure through requirement, direction or instruction:

82. That Crestville had appropriate systems in place to ensure that the auto-belay system was subject to appropriate inspections and factory servicing.

83. That Crestville provided appropriate information, training and instruction to workers in relation to the inspection of the auto-belay system and associated lanyards.

84. That Crestville provided an appropriate instruction to climbers that they should discontinue climbing immediately if slack developed in the lanyard when using auto-belays.

85. That Crestville developed, implemented and enforced a system of appropriately tracking the resolution of maintenance issues.

86. Additionally, work health and safety issues were not regularly discussed at directors’ meetings or appropriately recorded in meeting minutes.

87. The auto-belay involved in the incident was installed on 2 August 2019 and had undergone a formal in-house inspection performed by Mr Brown, a Crestville employee, on January 2020 in accordance with the Operations Manual. However, the relevant auto-belay was due for a major service in July 2021. This incident occurred in October 2021, and the auto-belay should have been inspected at least three times before the incident, but was not.

88. Further at the time of the incident, there were four entries entered into the “spinners and ropes” inspection and maintenance log kept at the Gym since the installation of the auto-belay, noting issues with the relevant auto-belay not taking up the slack in the lanyard for the last one to two metres of the climb. Yet nothing was done.

89. The failures of the directors were intimately linked to those of Crestville. The risk was obvious, and the measures that the directors ought to have taken were readily available to them. The consequences of the failures were, once again, as serious as they could possibly be.

Deterrence

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

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

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

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

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

…

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

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

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

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

Victim Impact Statements

93. Two Victim Impact Statements were tendered. The first statement was of Ms Kiah Berglund, who was the de facto partner of Mr Araya, which became exhibit B. Ms Berglund provided the court with an incredibly eloquent, yet heartbreaking, statement of the manner in which the death of Mr Araya has changed her life. She states:

“My whole world imploded and has been in a state of disarray since.”

94. She is “filled with pain from the loss of her beloved Andy”. She has had to seek repeated medical assistance from her general practitioner and psychologist and has developed PTSD, anxiety and depression. She has been on, for the first time in her life, anti-depressants, Valium and anti-psychotics to help her remove the constant images of Mr Araya’s death playing in her mind over and over again. She has had suicidal ideations and hated everyone who looked happy. She had to quit her job to move home to be with her mother to be cared for as she could not deal with her new reality. She details how the complexity of moving through this stage in her life is so traumatic and distressing. She feels she cannot get close to people because there is a huge part of her life of which they are not aware, and she doesn’t want to talk about how much she has suffered and is still suffering to this day. She states as follows:

“The initial shock and pain have transformed in underlying sadness, a deep depression, a constant humming in my veins, anxiety and fear that anytime I see my loved ones, it could be the last, and my mind is still trying to not turn in on itself towards the severity of the pain over never seeing Andy again.”

95. Her statement is incredibly detailed and personal. It is heartbreaking to read and I accept that her life has been permanently changed negatively as a consequence of the accident. I feel very honoured and grateful that Ms Berglund wrote such a powerful and moving statement, and then had the courage to come to court and read it to a group of strangers.

96. The second Victim Impact Statement was of Jimena Olivares, the mother of Mr Araya. This became exhibit C. Ms Olivares has also experienced excruciating grief. The police attended her property and told her of the news. She said as follows:

“In that moment I died too. I screamed, yelling ‘NO it can’t be, no please’ I yelled & our life changed forever as a family. The life we once thought we would have, so beautiful and blessed with an amazing future, was now never going to be.

From that day our family suffered the most painful unimaginable loss of the tragic passing of our Andy. As a family we have all struggled to come to terms with his death and we are all heartbroken in different ways that will affect us for the rest of our lives.”

97. Mr Araya’s mother details the anguish that is felt over every Christmas, New Years Eve, Mother’s Day, Father’s Day and birthdays, and I accept that she has found it incredibly difficult and near impossible to function as she used to before Mr Araya’s passing. She is heartbroken and has been unable to maintain any social life and has withdrawn herself from all social occasions. She can barely look at family photos or videos and is unable to talk about him. She has isolated herself from everyone and everything and has also sought ongoing medical and Allied Health treatment but still struggles to cope with everyday life. She tried to return to work as she hoped that being busy and exhausted at work would help, for a little while, her to forget her intense suffering, but it hasn’t worked. She has difficulty sleeping and wakes every morning to accept that her life will never be the same. She states:

“Losing a child is your worst nightmare, we are going through the unimaginable, the biggest hardship you could ever deal with as a parent and family. You never think something like this would ever happen to you, to us.”

98. Again, I feel honoured that Mr Araya’s mother showed the strength and character to write such a moving statement and to come to court and read it to a group of strangers.

99. I send my deepest condolences to Mr Araya’s family and friends and can only hope that as each day passes that their suffering may ease a little.

100. The only penalties that I can impose on the defendants are by way of fines. This may seem inadequate to Mr Araya’s family and friends, but my jurisdiction only allows me to fine the defendants.

Aggravating Factors

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

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

Mitigating Factors

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

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

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

104. The defendants have not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.

105. The original Summonses were filed on 11 October 2023. Crestville entered a plea of guilty on 11 November 2024, while the directors entered pleas of guilty on 16 December 2024. I accept that there was also a protracted period of negotiation in relation to the statement of facts in the matter; the signed facts were finalised on 4 June 2025. Nevertheless, a significant utilitarian benefit has resulted from the defendants’ pleas: s 21A(3)(i) and (k) and s 22 of the Sentencing Act.

106. The plea can also be regarded as an indication of remorse.

107. Additionally, each of the defendants has expressed remorse in material before the court. There is no reason to doubt the sincerity of the expressions of contrition by the defendants. The reduction in the dividends paid to shareholders by Crestville provides a concrete illustration of the defendants’ preparedness to take responsibility for their respective actions

108. I accept that the defendants are corporate citizens of good character and have contributed to the community: s 21A(3)(f) of the Sentencing Act.

109. I accept that the defendants are unlikely to reoffend as they have undertaken significant changes and are even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. These are not defendants that had no regard to safety at all – they had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the installation tasks.

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

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

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

Capacity to Pay

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

“6 Consideration of an accused's means to pay

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

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

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

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

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

116. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]:

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

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

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

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

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

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

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

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

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

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

117. 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.”

118. I accept this authority is relevant to these proceedings. Crestville is a small company, which I accept has endured some financial hardship, and could not be described as a “large corporation”.

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

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

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

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

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

123. A defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that they do not have the capacity to meet a fine.

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

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

126. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].

127. On the basis of the totality of the documents before me, I propose to exercise my discretion under s 6 of the Fines Act and afford the defendants some leniency.

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

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

130. The court is entitled to take into account the fact that the defendants will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.

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

Penalty

127. I make the following orders:

With regard to 2023/00335534, SafeWork NSW v Crestville Holdings Pty Ltd:

1. Crestville Holdings Pty Ltd is convicted.
2. The appropriate fine is $500,000 but that will be reduced by 25% for the utility of the early plea.
3. Accordingly, that results in a fine of $375,000.
4. Pursuant to s 6 of the Fines Act 1996 (NSW), I exercise my discretion and reduce that fine by 25%.
5. Accordingly, Crestville Holdings Pty Ltd is to pay a fine of $281,250.
6. Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50% of the fine is payable to the prosecutor.
7. The defendants are to pay the prosecutor’s costs as agreed or assessed.

With regard to 2023/335520 SafeWork NSW v Simon Stevens:

8. Simon Stevens is convicted.
9. The appropriate fine is $150,000 but that will be reduced by 25% for the utility of the early plea.
10. Accordingly, that results in a fine of $112,500.
11. Pursuant to s 6 of the Fines Act 1996 (NSW), I exercise my discretion and reduce that fine by 25%.
12. Accordingly, Simon Stevens is to pay a fine of $84,375.
13. Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50% of the fine is payable to the prosecutor.
14. The defendants are to pay the prosecutor’s costs as agreed or assessed.

With regard to 2023/335513 SafeWork NSW v Michael Garben:

15. Michael Garben is convicted.
16. The appropriate fine is $150,000 but that will be reduced by 25% for the utility of the early plea.
17. Accordingly, that results in a fine of $112,500.
18. Pursuant to s 6 of the Fines Act 1996 (NSW), I exercise my discretion and reduce that fine by 25%.
19. Accordingly, Michael Garben is to pay a fine of $84,375.
20. Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50% of the fine is payable to the prosecutor.
21. The defendants are to pay the prosecutor’s costs as agreed or assessed.

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