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[2025] NSWDC 402
General information, not legal advice.
District Court of NSW
2025-10-03
Strathdee 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 Mills & Watson Plumbing Pty Ltd; SafeWork NSW v Christopher Allan Mills [2025] NSWDC 402
Hearing dates: 28 August 2025
Date of orders: 3 October 2025
Decision date: 03 October 2025
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision: With regard to 2024/211103 SafeWork NSW v Mills & Watson Plumbing Pty Ltd:
(1) Mills & Watson Plumbing Pty Ltd is convicted.
(2) The appropriate fine for the offence is $300,000 and that will be reduced by 25% to reflect the plea of guilty.
(3) Accordingly, I order the defendant to pay a fine of $225,000.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.
With regard to 2024/211120 SafeWork NSW v Christopher Allan Mills:
(1) Christopher Allan Mills is convicted.
(2) The appropriate fine for the offence is $30,000 and that will be reduced by 25% to reflect the plea of guilty.
(3) Accordingly, I order the defendant to pay a fine of $22,500.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed
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
Criminal Procedure Act 1986 (NSW), s 257B
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 27, 31, 32
National Construction Code ABCB Housing Provisions, 2022
Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
Jahandideh v R [2014] NSWCCA 178
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Youkhana [2004] NSWCCA 412
Rahme v R (1989) 43 A Crim R 81
SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
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)
Mills & Watson Plumbing Pty Ltd (Defendant)
Christopher Allan Mills (Defendant)
Representation: Counsel:
M Scott (Prosecutor)
H Pararajasingham (Defendants)
Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb Lawyers (Defendants)
File Number(s): 2024/211103; 2024/211120
Publication restriction: Nil
Mills & Watson Plumbing Pty Ltd (Mills & Watson) has entered a plea of guilty for a breach of s 19(1) and s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act). By its plea of guilty, Mills & Watson is taken to have acceded to the particulars set out in Annexure A to the Amended Summons.
Christopher Allan Mills (Mr Mills) has entered a plea of guilty for a breach of s 27 and s 32 of the WHS Act, and by his plea of guilty he is taken to have acceded to the particulars set out in Annexure A to the Amended Summons.
The prosecutor tendered the Prosecution Sentence Tender Bundle (PSTB) which became exhibit A. The defendants tendered an affidavit of Gregory John O’Neill of 13 August 2025, which became exhibit 1, an affidavit of Mr Mills of 14 August 2025, which became exhibit 2 and a further affidavit of Mr Mills of 26 August 2025 which became exhibit 3.
The maximum penalty for Mills & Watson for the breach is $1,782,579, and the maximum penalty for Mr Mills is $356,721. I accept that the maximum penalty amount is indicative of the Parliamentary conclusion as to the seriousness of the offence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372.
At all material times, Mills & Watson conducted a business or undertaking in plumbing, drainage, pipelines and excavations for residential, commercial and industrial properties.
At all material times, Mr Mills was the sole director and officer of Mills & Watson who had a duty pursuant to s 27 of the WHS Act to exercise due diligence. He made decisions that affected the whole or a substantial part of Mills & Watson’s business, including decisions on work health and safety policies and procedures. He was also a licensed plumber for approximately 15 years and held an excavator license for approximately 10 years prior to the incident.
Bellabrae Homes Pty Ltd (ACN 12 652 294) (Bellabrae) was the principal contractor of a new build at 46 Whitsunday Crescent, North Kellyville, New South Wales (the site), which was a workplace within the meaning of s 8 of the WHS Act. Bellabrae conducted a business or undertaking in residential construction. At all material times, Mr Gagandeep Jitla (Mr Jitla) was the sole director of Bellabrae.
On or about May 2022, Bellabrae subcontracted to Mills & Watson for the internal and external plumbing work involved for the new build at the site.
Approximately 6-8 weeks prior to the incident and before plumbing work commenced, Excon Services Excavation (Excon) was engaged by Bellabrae to excavate the site in order to lay a concrete slab (the concrete slab). This excavation formed an excavated face more than 1.5 metres high (the earthen wall) along the eastern boundary of the site.
The plumbing work to be undertaken by Mills & Watson at the site required additional excavation work to be undertaken in order to lay plumbing pipes. Mills & Watson subcontracted this excavation work to Rijo Civil Pty Ltd (Rijo) who then subcontracted to JG Plumbing and Excavation Pty Ltd (JG Plumbing). Rijo did not attend the site.
At all material times, the following workers were performing works at the site:
Lachlan Sloane (Mr Sloane), who was a second-year apprentice obtaining the Plumbing Certificate II, and had been employed by Mills & Watson since 1 June 2020.
Benjamin Nicol (Mr Nicol), who was a drainer and supervisor employed by Mills & Watson for 10 months and had been performing plumbing and draining work for approximately 11-12 years.
Jack Godwin (Mr Godwin), excavator operator engaged by JG Plumbing and one of its directors.
Aidan Shannon (Mr Shannon), pipe layer engaged by JG Plumbing.
Mr Sloane, Mr Nicol and Mr Godwin had not been to the site before the day of the incident. Mr Nicol had worked with Mr Godwin and Mr Shannon on approximately 10-15 jobs prior to the incident. Mr Mills had known Mr Shannon and Mr Godwin for approximately 10 years. Both Mr Shannon and Mr Godwin had conducted their apprenticeships for Mr Mills.
On or around 15 June 2021, Bellabrae began work at the site.
On 17 September 2021, Bellabrae was provided with a geotechnical report by Idealgeotech stating that there was not existing fill or fill containing wood, metal, plastic or other deleterious materials in the soil, and that excavation of the site would be of rock.
In February 2022, Bellabrae engaged Meares Consulting Pty Ltd (Meares), an engineering firm, to perform stormwater and structural design for the site. A representative of Meares attended the site on five occasions throughout April and May of 2022.
Bellabrae had Architectural Plans prepared by FYFFE Design dated 9 March 2022, which set out design information and plans for the build. It contained the following:
“Sediment note:
(i) All erosion and sediment control measures to be inspected and maintained daily by the site manager,
(ii) Minimise disturbed areas, remove excess soil from excavated area as soon as possible.”
From early April 2022 to 3 May 2022, Excon undertook excavation in the perimeters on the eastern boundary of the site marked out by Bellabrae. Bellabrae did not instruct Excon to batter, shore and/or pile the excavation.
On 13 March 2022, Mills & Watson provided a draft quote to Bellabrae, which included the exclusion “no allowance for trench shoring”. Bellabrae provided Mills & Watson with some plans, but these did not show the conditions encountered on site, nor were they engineering plans. Mills & Watson had performed work for Bellabrae previously in 2019 and 2020 on other jobs.
During May 2022, Mr Mills and Mr Jitla attended the site to discuss the drainage under the concrete slab. Mr Mills informed Mr Jitla that additional excavation may be required next to the eastern boundary wall to accommodate the drainage needed but this would be determined on the day the work was to be undertaken. Mr Mills attended the site alone on one other occasion to perform a general inspection of the site.
Bellabrae asserts that the potential risk associated with working next to the earthen wall was discussed with Mr Mills during a site visit and walk-through. There were no discussions in relation to any controls such as battering, shoring or piling that may have been needed.
On 9 June 2022, JG Plumbing began excavating a trench approximately 300mm deep (the trench) in order to lay pipes. The trench lay in between the face of the earthen wall previously excavated and the neighbouring property. Mr Mills and Mr Sloane believed the height of the earthen wall was around two metres. Bellabrae states it was 1.2 metres in height.
SafeWork NSW Inspector Shaw, who attended the site on 9 June 2022, noted that:
“The eastern side of the excavation ranged from approximately 0m at the northern end and to approximately 2.5m at the southern end. An excavated cut on the south face of approximately 3.5m high was near to vertical and beginning to slump at approximately 800m high from the base. There did not appear to be any type of shoring system in place.”
Prior to the incident, Mr Mills requested Mr Sloane to attend the site to perform the external drainage. Mr Sloane, Mr Nicol and Mr Godwin were attending the site for the first time on 9 June 2022, and there was no site-specific induction or toolbox talk or meeting in relation to work health and safety prior to working.
Mr Nicol was supervising the work by virtue of being “the oldest” worker. Mr Mills advised Mr Nicol of the tasks for the day and provided him with an A3-size printed plan from Bellabrae which illustrated where plumbing infrastructure such as sewer connection and stormwater drains needed to be included in the build.
Mr Nicol indicated he did not know if there was an inspection of the soil material, or any other inspection done of the area prior to excavation. Mr Mills did not have discussions with Mr Sloane or Mr Nicol regarding controls that needed to be in place when doing excavation work or digging trenches at the site.
On 9 June 2022, Mr Nicol marked out the area for laying pipes with Mr Godwin, and Mr Nicol indicated the trench needed to be about 900mm wide. It was decided Mr Godwin would dig the side closest to the earthen wall to excavate the trench.
Mr Godwin commenced excavating the trench using a 5-tonne Kobelco excavator, and he placed the soil removed from the trench onto the side of concrete slab. In re-excavating the boundary wall, Mr Godwin did not change the profile of the wall. He battered off the excavation of the trench by using the mud bucket of the excavator.
Mr Sloane, at approximately 8.30am, jumped into the trench to clear out the remaining rocks and fill with a shovel to make it flat prior to laying the pipes. Mr Sloane stated he was not specifically instructed to do so by anyone. Mr Nicol stated it was usual practice to go into a trench to get the loose material out of the bottom before laying the pipework, and that he may have asked Mr Sloane to get in the trench.
Mr Nicol had also been in the trench minutes earlier prior to the earthen wall collapse, clearing it out with a shovel. Mr Godwin was using the excavator approximately 5-15 metres away from Mr Sloane at the time of the collapse and was continuing to dig the trench. Mr Goodwin was not facing Mr Sloane at the time. Mr Shannon was approximately a metre away from Mr Sloane working in the trench when the incident occurred.
Mr Sloane heard someone yell out to get out of the way and then the earthen wall collapsed on him, causing him to fall on his side and being engulfed by the soil. Mr Shannon and Mr Nicol yelled out and began digging Mr Sloane out by hand, Mr Godwin also stopped his excavator and came to assist. The workers rendered first aid to Mr Sloane, removed him from the soil and called emergency services.
Mr Sloane was treated for pelvic fracture, right superior and inferior pubic rami fractures. He was discharged from hospital with non-operative management on 12 June 2022 and returned to work in September 2022.
Inspector Shaw recorded the height of the soil in the area where Mr Sloane was struck to be approximately 1.6 metres above the concrete slab. Adding on the depth of the concrete slab and then the 300mm of the trench brings the height from the bottom of the trench to top of the earthen wall to approximately two metres.
Mr Samuel Walker (Mr Walker) produced an expert report relating to the incident dated 13 December 2023, stating that the likelihood of the earthen wall collapsing significantly increased when the height of the excavation is greater than 1.5 metres in height, and this is also dependent on several factors, including fill material.
Mr Walker determined the following in his report:
The excavated face along the eastern boundary, being constructed without any restraining structure and at any angle greater than the natural angle of repose of the soil, collapsed due to instability of the soil.
An uncontrolled collapse of any excavation was a foreseeable hazard, and it was a reasonably foreseeable practice that a worker would enter the trench.
Following the completion of the site excavation, on or before 3 May 2022, a reasonably foreseeable risk of an uncontrolled collapse was present.
The Architectural Plans, Engineering Plans and Lot Classification did not provide sufficient information to enable the identification, assessment, and management of the risks associated with the uncontrolled collapse of an excavation along the eastern boundary.
The Lot Classification Report could not be used to identify, assess, or manage the risks associated with the uncontrolled collapse of an excavation along the eastern boundary.
Shoring of the eastern boundary excavation was reasonably practicable and should have been designed in accordance with geotechnical and structural engineering advice, which should have been sought prior to site excavation.
The presence of uncontrolled fill along the eastern boundary means an un-retained excavation is not permitted in accordance with s 3.2.1 of the National Construction Code ABCB Housing Provisions.
Excavation of soil introduces stresses and reduces the strength of the soil. The earthen wall formed by the excavation of the site was not supported by any retaining structure by use of appropriate battering, shoring and/or piling, and it was at an angle greater than the natural angle of repose of the soil, causing further instability to the soil.
The soil encountered on the day at the site was not consistent with the ground conditions referenced with the Idealgeotech report obtained in February 2022. Brick and other materials not part of original soil structure were located in the collapsed material. There was also no fill in the soil.
Mr Godwin stated that “The property next door was land fill” and that the earthen wall was a “wall of fill” and “pretty much all of it was fill... was not natural ground... with a lot of rock in it”.
The qualities of the fill material along the eastern boundary were not assessed by Bellabrae in relation to slope stability, and subsequently the qualities of the natural soil and/or fill to resist failure by sliding or collapsing were unknown.
Prior to the incident, Mills & Watson had a Safe Work Method Statement (SWMS) – Plumbing, drainage, stormwater, excavation and associated works dated 22 May 2022, purportedly electronically signed by workers, including Mr Sloane on 24 June 2022 (ie after the incident). It states the following with respect to the activity of working in or near excavations:
Excavations deeper than 1.5m must be benched, battered or shored in line with the soil type.
Workers are not to enter trench before benching, battering or shoring of the earthen wall until a competent person or engineer has deemed it safe to do so.
Trenches to be barricaded and sign-posted.
The SWMS did not contain an assessment of the risk of injury to persons working in the vicinity of a previously excavated earthen wall, and/or excavating a trench in the vicinity of a previously excavated earthen wall.
Mr Nicol and Mr Sloane both stated that they had not been provided with a SWMS for the job being completed on the day of the incident, nor had they seen any engineering structural plans before commencing work on the site.
Prior to the incident, Bellabrae did not provide Mills & Watson with relevant information regarding the stability of the earthen wall and control measures to prevent collapse of the earthen wall. Bellabrae also did not enforce a safe work procedure for undertaking excavation work at the site including the excavation of the trench and ensuring that the earthen wall was adequately supported.
Mr Godwin was not provided with any dimensions to excavate the trench, or any structural plans or engineering reports. Nor did he previously have any interaction with Mr Mills or Mr Jitla regarding the job.
Mr Godwin could not support the trench by benching whilst it was being excavated due to its proximity to the neighbouring property.
Prior to the incident, Bellabrae and Mills & Watson did not prohibit work from being undertaken inside or alongside the trench next to the earthen wall, until control measures were in place to protect workers against risk of collapse or partial collapse.
No prestart job site inspection or risk assessment was undertaken before excavating the trench, nor were workers provided with adequate information or instruction or training in relation to digging the trench at the site. Prior to the incident, Mills & Watson also did not have a safe work procedure in place for the excavation of the trench, nor was supervision provided to workers excavating the trench.
Prior to the incident, Mills & Watson did not conduct a risk assessment or identify hazards and control measures in relation to the excavation of the site, including those in relation to the excavation of the earthen wall, and the excavation of the trench. It did not ask Bellabrae if it had conducted a risk assessment or identified hazards and control measures.
Mills & Watson did not consult with, or obtain advice from, a competent person in relation to the design of control measures needed to support the earthen wall, such as battering, shoring and/or piling prior to its excavation of a trench in its vicinity. It did not ask Bellabrae if it had consultation, or received advice, with respect to these control measures.
Prior to the incident, Mills & Watson did not obtain from Bellabrae, or alternatively from competent persons, information or advice in relation to the stability of the earthen wall for the purpose of excavating the trench. Mills & Watson did not have a safe work procedure in place for the excavation of the trench at the site.
Prior to the incident, Mills & Watson had a Work Health and Safety Manual which specified:
Risks associated with construction work are managed in accordance with the hierarchy of control measures before work commences.
The work is performed in a manner that eliminates or minimises the risk to the health and safety of the workers.
SWMS are prepared for all high risk construction work before work commences and in consultation with workers.
All workers understand the SWMS in relation to hazards, risk control methods and are sufficiently trained to be able to implement the control methods.
The SWMS is implemented, monitored and reviewed as necessary, ensuring necessary requirements are met.
All workers undertaking work related to a construction project receive sufficient supervision and instructions throughout the life of the work to ensure they are able to undertake the work safely.
Mr Mills did not implement, or direct Mills & Watson to implement, the abovementioned measures.
The site inspection that Mr Mills undertook with Mr Jitla did not consider either the fill material visible in the earthen wall, or the lack of visible support means of the earthen wall.
Following the incident, Mr Mills arranged for Mills & Watson to undertake the following actions:
Hold an introductory WHS meeting with Employsure which occurred on 16 June 2022.
Speak with workers and refresh site safety.
Review risk assessment and provide workplace safety manuals.
Implement an online system to assist in recording hazards.
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.
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.”
“…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.”
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (1999) 90 IR 464 at 474-475.
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.
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.
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].
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.
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].
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.”
“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.”
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.
The court is obliged to make an assessment of where on the scale of criminality the offences, lie referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
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 offending: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:
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].
The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34].
Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53].
Whether the risk was known or ought reasonably to have been known to or identified by the offender.
Whether the risk was an obvious or clear one.
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).
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.”
The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium at [89]. The risk associated with collapsing trenches and earth in structures is well-known. Paragraphs 74-79 of the ASOF set out guidance material available to the defendants during the relevant time.
The details of an expert report relating to the incident prepared by Mr Samuel Walker are set out at pars 44-50 of the ASOF.
Mr Walker at par 46(F) of the ASOF states as follows:
“Shoring of the eastern boundary excavation was reasonably practicable and should have been designed in accordance with geotechnical and structural engineering advice, which should have been sought prior to the site excavation.”
The systems of work prior to the incident that are relevant to the corporate defendant are set out in pars 51-66 of the ASOF. Of note, par 61 of the ASOF refers to a SWMS that was in place at the time of the incident. The details of that generic SWMS were not followed regarding the incident. Further, at par 65 of the ASOF, Mr Nicol and Mr Sloane both stated that they had not been provided with a SWMS for the job being completed on the day of the incident, nor had they seen any engineering structural plans before commencing the work at the site.
Paragraph 64 of the ASOF refers to the Mills & Watson Work Health and Safety Manual which was in place at the time. However, that manual was not followed.
The systems of work prior to the incident relevant to Mr Mills is set out in pars 67-73 of the ASOF.
Failures of the system of work exposed persons working in or around the trench to a serious risk of injury or death. The steps necessary to eliminate that risk are set out in Annexure A to the Amended Summons relevant to both defendants.
The defendants assert that in assessing the foreseeability of the risk in this matter, it is important to have regard to the nature, extent and scope of Mills & Watson’s safety systems at the time of the incident. In this regard the defendants submit, as deposed to in Mr Mills’ affidavitthat prior to engaging any workers, Mr Mills conducted checks on their qualifications and would make due enquiries of their former employers to make sure they were equipped for the work to be undertaken.
Upon commencement, workers were provided with a detailed verbal induction about Mills & Watson’s operations and the standards and values the business sought to uphold.
Inexperienced workers would spend the initial weeks of their employment following and observing more experienced workers. Apprentices were also accompanied by a qualified plumber who would supervise and train them.
Mills & Watson provided an open-door policy by which workers were encouraged to approach Mr Mills about any workplace enquiries.
As for training, Mr Mills provided verbal instructions to workers about the best industry practice on key tasks such as reviewing external drainage. He also sought to provide feedback to workers on their performance as required.
Plant and equipment were duly inspected to ensure its safe use and storage.
Given the repetitive nature of the work, in or around 2019, Mills & Watson prepared a generic SWMS and Risk Assessment which applied to its plumbing, drainage, stormwater, excavation and associated risks, and would be amended as needed. In fact, a SWMS for the relevant site in North Kellyville had been prepared prior to the subject incident, though regrettably, was not duly circulated to the workers.
Mr Mills would undertake an inspection of the sites prior to allocating any workers, so as to provide direction about site conditions and the nature of the work. Relevantly, he attended the North Kellyville site on two occasions in around May 2022 prior to the subject incident. Further, on the day prior to the subject incident, Mr Mills liaised with Mr Nicol and provided detailed guidance about the work to be pursued.
I note that prior to the subject incident, in around April 2022, the defendants had made arrangements with the workplace safety advisory consultant, Employsure Pty Ltd, about the prospect of assisting with developing and expanding Mills & Watson’s safety system which is referred to in Mr Mills’ affidavit (exhibit 2) at par 16.
The nature of the dealings between Mills & Watson and Employsure were far-advanced and Employsure was initially slated to meet with Mr Mills on the day of the subject incident to undertake a full review of its existing policies and ascertain where the limitations were, and what steps needed to be undertaken to ensure a safe workplace was maintained. Regrettably, due to a scheduling conflict, the discussion was required to be postponed and ultimately occurred a week later on 16 June 2022.
The defendants accept that the degree of foreseeability of the risk in this matter, and its potential consequences, were significant and should have, and could have, been anticipated and subsequently minimised.
The defendants submit, however, that their approach to the risk prior to the incident evinces an intention to address the risk, albeit they accept that their pre-incident approach was inadequate.
In this regard, the defendants submit that this is not a case whereby the defendants were either blind to the risk, or otherwise aware of it but chose to do nothing. Rather, their existing systems were deficient and the defendants readily accept that more ought to have been done. I accept this all to be so.
Further, the defendants accept that the likelihood of the risk eventuating, within the facts pleaded, was moderate to high. The defendants also accept, as do I, that their existing safety systems in the premises, were not sufficiently targeted to the risks associated to the task of excavating a trench.
The defendants accept that the gravity of the potential risk to safety was high and fully appreciate, in particular, the nature of the physical injuries sustained by Mr Sloane.
Importantly, the defendants accept that the steps specified in par 17 of the Amended Summons were available control measures and ought to have been duly implemented.
I accept that whilst Mills & Watson had existing systems in place which were meant to advance safety, these were deficient and did not fully account for the nature of the particular risks inherent with the task of excavating a trench. I further acknowledge that by the plea the defendants concede that steps ought to have been taken to eliminate the risk to safety.
The defendants submit that they are unlikely to re-offend as they have undertaken significant changes to prioritise and maintain safe working environments and as such I accept they have demonstrated a strong commitment to workplace safety and therefore have high prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
In this regard, the defendants note that immediately following the incident on 16 June 2022, seven days after the subject incident, they liaised with Employsure and requested those consultants to undertake a comprehensive review of the safety systems and provide guidance as to the steps it ought to take.
I note that the defendants have prepared significant documentation to provide guidance on all facets of work undertaken by the enterprise. All workers were provided training and direction in regard to this manual.
I also accept that the defendants have sought to advance a transparent and cooperative safety culture by way of placing particular emphasis on toolbox talks and has implemented a programme called “SiteDocs” as a tool to manage its safety documents and maintain a level of real time evaluation over the workplace.
Finally, I accept that since the subject incident, Mills & Watson has continued to discharge its services on various sites and has not encountered safety incidents of any kind. In addition, the defendants have not been the subject of any site audit by the Regulator resulting in the issuing of any additional notices, or being given any directions, in relation to addressing risks the subject of this prosecution, or otherwise.
The construction industry is a notoriously dangerous industry in part because the industry involves the interaction of humans with sites that have been excavated and not appropriately shored. The unpredictability of the stability of an excavated site must not be in any way underestimated, and protections must be in place. These present circumstances highlight the need for caution on construction sites, including the obvious need to ensure people are not put in harm’s way when moving around a site.
The plea of guilty by the defendants presents an acknowledgment of their failures which gave rise to Mr Sloane being exposed to the risk, and of the manifestation of that risk which was demonstrated in the serious injuries he sustained.
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.
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).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
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.”
General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and work, in particular excavation work, which would be readily described as hazardous.
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.
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.
The risk arising from the nature of the work being conducted by the defendants is so well known that it should be at the front of mind before work of a kind undertaken on 9 June 2022 occurred. The fact that it was not so in this instance reflects a need to highlight to the residential building industry the need to continually assess the level of such risks and take necessary steps to overcome them.
There also needs to be a focus on the requirement to obtain specialised advice to overcome the risk of earthen walls collapsing during the planning phase of residential building work, and further advice as to how such a risk should be avoided.
This is of particular importance when young, inexperienced and/or untrained workers are required to work in or around trenches or unrestrained earthen structures.
In relation to specific deterrence, the attitude of the defendants 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 defendants to reoffend.
The situation with Mills & Watson appears uncertain. It has divested itself of several existing contracts, yet it remains a registered corporation. As such, there is no restriction or barrier to the company once again undertaking new contractual work.
As that work would most likely be of the same nature as the work undertaken in the past, there remains a need for specific deterrence to keep at the front of mind of Mills & Watson the need for proper planning and preparation of the work site prior to work being undertaken so that persons performing such work on the site are able to do so safely.
I accept that after the incident Mills & Watson has shown a commendable attitude with regard to the development of safety documentation and consultation processes. However, there were safety procedures and documents in place at the time of the incident which were not given effect to.
With regards to Mr Mills, I note that he remains the director of two companies performing plumbing and drainage work. Whilst he has, to his credit, actively pursued obtaining advice from work, health and safety consultants and assisted in the development of appropriate safety documentation and procedures, there still must be an element of specific deterrence to ensure that he, as the director of Mills & Watson, remains focused on his duties.
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).
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.
I also note that the victim was vulnerable due to his age and inexperience: s 21A(2)(l) of the Sentencing Act.
“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.”
The defendants have not been subject to prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such are entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.
I accept that the defendants are corporate citizens of good character and have made significant charitable donations and contributions to the community: s 21A(3)(f) of the Sentencing Act
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 their workers: s 21A(3)(g) of the Sentencing Act.
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*.*
I accept that the defendants have demonstrated their remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.
The defendants co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.
The defendants entered pleas of guilty to the Amended Summons at an early stage of the proceedings. Such pleas of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.
“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.”
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].
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).
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.”’”
“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.”
I accept this authority is relevant to these proceedings. The company consisted of Mr Mills and his wife, endured some financial hardship, particularly during the COVID-19 pandemic and could not be described as a “large corporation”.
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.”
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).
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:
The financial position and means of defendants should be taken into account when determining the fine to be imposed.
The defendants bear 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.
It is for the defendants to place detailed financial information that fully discloses their financial circumstances to the court so that a proper assessment of their capacity to pay can be undertaken.
It is for the prosecutor to check the information provided by the defendants, and to assist the court in relation to the assessment of the defendants capacity to pay.
In any event, notwithstanding the capacity of the defendants 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 v* 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].
With regards to Mills & Watson it is relevantly submitted on this issue as follows:
It currently has no employees, other than Mr Mills and his wife, who acts in the position of account manager.
It is involved in limited subcontracting activities (subsequent to its sale to Flowlink Plumbing & Civil Pty Ltd) and is ceasing operations in the Sydney area.
In around 2020, its financial viability was precarious, It suffered a significant loss of $149,160 in FY2023, and a modest profit of $11,631 in FY2024.
It is expected that for FY2025, it will similarly post a modest profit of approximately $59,000.
Historically, it has been hindered by an excessive taxation debt which has only recently discharged.
Its operations were impeded by factors such as the COVID-19 pandemic and delays to various projects due to inclement weather in Sydney and inflationary pressures which resulted in a downturn in work.
Notwithstanding these paradigms, it has sought to prioritise its obligations to employees and suppliers, and did not make anyone redundant despite its lean operations in 2020 and 2021.
It is submitted by Mills & Watson that in light of the above it has a particularly limited capacity to pay any fine and would likely need to obtain a business loan and review the overall viability of its operation to satisfy any fine.
With regards to Mr Mills, it is relevantly submitted by him that:
He is the primary income earner for his family of four and is expecting his third child in October 2025. Whilst his wife assists with Mills & Watson’s accounts, she splits her time between working in family care and responsibilities.
Since 2020, Mr Mills has drawn a modest income from work with Mills & Watson and personally contributed over $150,000 to keep the business viable. In FY2023 his taxable income was $96,469 and FY2024 his taxable income was $120,856 (with a similar figure expected for FY2025).
In light of his living expenses, including his housing loan which accounts for over half of his nett monthly pay, the fine results of that may result from these proceedings will have a significant impact on his wellbeing and that of his family.
Mr Mills was cross-examined by counsel for the prosecutor, in particular as to his financial affairs. A significant affidavit which attached many pages of financial documents became exhibit 3. There were many discrepancies in the evidence that Mr Mills had deposed to in his affidavit in contrast to the financial documents attached.
In particular, at p 46 of exhibit 3, it evidences that the company employed eight or nine people and the wages bill was $676,715. The document would suggest he was paid $121,513. However, at p 112 the wages bill had gone up to $700,208 with an associated person receiving $125,338 and Mr Mills allegedly receiving $82,676. By then, there were no other employees other than Mr Mills. At p 103 of exhibit 3 there was a shareholders loan of $550,707.60. Mr Mills denied any knowledge of that loan. At p 122 of exhibit 3 there was a loan to Mr Mills of $617,303.87. He again denied knowledge of that loan.
The amount of the wages bill between 2022 and 2024 continued to increase and his only response was that he did not understand and that his wife did the books. There were numerous vehicles detailed at p 122 of exhibit 3 which were alleged to be owned by the company. However, some of those were clearly used for personal use by Mr Mills and his wife.
Importantly, it was evidenced that Mr Mills and his wife owned a rental property in Queensland which they sold for a profit of approximately $150,000 in about mid to late 2024. The monies realised from the sale of the property in 2024 are unaccounted for in the financial documents. Mr and Mrs Mills further owned an additional investment property at Taylors Road, Queensland for which they were receiving $925 per week in rental income.
Given the documents annexed to the affidavit and the vague and unsatisfactory responses to the questions asked in cross-examination by the counsel for the prosecutor, I am not so satisfied that the company does not have capacity to pay and decline to exercise my discretion to reduce the fine on this basis.
I further note that 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).
The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, 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.
The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
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.
With regard to 2024/211103 SafeWork NSW v Mills & Watson Plumbing Pty Ltd:
With regard to 2024/211120 SafeWork NSW v Christopher Allan Mills:
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(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(1999) 92 IR 188
(1996) 82 IR 384
(1995) 60 IR 455
(1990) 170 CLR 534
(1999) 90 IR 464
(2005) 228 CLR 357
(2004) 137 IR 310
(2005) 147 IR 117
(2011) 244 CLR 120
(2012) 35 VR 399
(2000) 49 NSWLR 383
(1988) 164 CLR 465
(2000) 49 NSWLR 700
(1975) 11 SASR 217
(2002) 112 IR 284
(1999) 94 IR 188
(1998) 86 IR 319
(2000) 95 IR 462