SafeWork NSW v Nepean Engineering and Innovation Pty Ltd

Medium Neutral Citation: SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411

Hearing dates: 8 October 2025

Date of orders: 21 October 2025

Decision date: 21 October 2025

Jurisdiction: Criminal

Before: Russell SC DCJ

Decision: (1) Nepean Engineering and Innovation Pty Ltd is convicted.
(2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Nepean Engineering and Innovation Pty Ltd to pay a fine of $225,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5) Order Nepean Engineering and Innovation Pty Ltd to pay the prosecutor’s costs.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty
COSTS – prosecution costs
OTHER – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm there was a safe system of work – failure to prepare and enforce a SWMS for the maintenance task – failure to stop work and conduct an updated risk assessment when a change in work process was identified

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited: Australian Standard 4024.1801: Safety distances to prevent danger zones being reached by upper and lower limbs
SafeWork NSW, Code of Practice How to Manage Work Health and Safety Risks, December 2011
SafeWork NSW, Code of Practice Managing the Risks of Plant in the Workplace, August 2019
SafeWork NSW, Guide to Machine Safety, undated

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Nepean Engineering and Innovation Pty Ltd (Defendant)

Representation: Counsel:
B Docking (Prosecutor)
T Game SC / S McIntosh (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s): 2024/54446

Judgment

1. Nepean Engineering and Innovation Pty Ltd (Nepean) was engaged by Boral Construction Materials Limited (Boral Construction) to provide engineering services involving planned maintenance to a bucket elevator conveyer at a site operated by Boral Cement Limited (Boral Cement). While installing a new conveyer belt on the bucket elevator conveyer on 13 February 2022, the conveyer went into an uncontrolled free run. A catastrophic failing of the fluid coupling occurred. It exploded, sending pieces of metal debris into the surrounding area where workers were located. Mr Douglas Bennett was struck in the back of the head by a cast alloy fragment and suffered serious injuries.

2. Nepean has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Bennett, Mr Brian Felix, Mr Brad Astil and Mr Daniel Bevan to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,782,579.

The Risk

4. The risk described in par 10 of Annexure A of the Amended Summons is as follows:

“The risk was the risk to workers, in particular Messrs Bennett, Felix, Astil and Bevan, suffering serious injury or death as a result of being struck, hit, burnt or otherwise coming into contact with:

a. Failed, cracked or exploding components of the hydraulic coupling; and/or

b. failed, cracked or exploding components of the cover or guard for the hydraulic coupling; and/or

c. hot hydraulic oil/fluid

whilst in the vicinity of the conveyor belt of EL13 during the work.”

Reasonably Practicable Measures

5. Paragraph 11 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Messrs Bennett, Felix, Astil and Bevan, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

a. Prior to the removal of buckets from the new belt of EL13, taking steps to confirm that Boral was providing, maintaining and implementing, a safe system of work for the work, which involved:

i. confirming the buckets were mounted and distributed on the belt in such a way as to reduce the prospect of an over-run; and

ii. until the belt was in balance, prohibiting the bump starting or inching or barring of the belt;

iii. confirming that the conveyor belt was in balance before removing, or permitting the removal of, the isolation locks for EL13;

iv. confirming that the coupling and main drive motor had been uncoupled from the gearbox prior to inching and barring of the belt of the EL13

b. Prior to the commencement of work, preparing and enforcing a safe work method statement (SWMS) for the replacement of the belt of EL13 and the refurbishment and replacement of buckets which included:

i. the steps identified at 11(a) above;

ii. confirming that the conveyor belt was in balance before the isolation locks for EL13 were removed; and

iii. confirming that the coupling and main drive motor have been uncoupled from the gearbox prior to [sic] inching and barring of the belt of the EL13 to isolate the coupling from the belt’s rotation;

c. Taking steps to enforce, after being notified that buckets would be removed from the new belt before it was lifted by crane into EL13, the defendant’s requirement that where a change in work process was identified that may lead to new potential hazards or risks during the installation of the new conveyor belt and/or buckets, that the work was stopped and an updated risk assessment was conducted with Boral to identify the appropriate controls/measures to address any new potential hazards or risks and implementing with Boral, the most effective risk control measures to address such hazards or risks;

d. In consultation with Boral, enquired or otherwise obtained from a mechanical engineer from Beumer Group and/or mechanical engineer Jagdeep Singh Gill Gurcharan Singh aka Mr Jack Gill, specific information, instruction and/or guidance regarding the following prior to lifting the new belt into position:

i. the number of buckets, if any, that should or could be mounted on the belt prior to lifting and where they should or could be mounted and distributed on the belt;

ii. the number of buckets, that had in fact been mounted on the belt prior to lifting and where they had been mounted;

iii. the appropriateness of the method of inching or barring of the belt occurring in the preparation of wire splicing and white metal casting having regard to (i) and (ii) above; and/or

iv. the potential hazard of the belt being unbalanced, free running or over speeding given the number and configuration of buckets mounted on the belt; and/or [sic]”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below. It must be emphasised that these facts are agreed between SafeWork and Nepean for the purposes of the sentencing of Nepean after its guilty plea. These facts cannot and will not have any significance in the later trial of two other corporations charged by SafeWork with offences under the WHS Act. Both those corporations have pleaded not guilty. It goes without saying that the same principle applies to any submissions made by counsel in these proceedings.

7. At all material times, Nepean was a registered corporation and a person conducting a business or undertaking (PCBU) involving the provision of engineering and fabrication services.

8. At the time of the incident Nepean had one director, Mr Miles Fuller.

9. Nepean was engaged by Boral Construction under contract BOR-NEP-211125 dated 25 November 2021 to provide engineering and fabrication services to the Boral Group of Companies, including Boral Cement.

10. Boral Cement conducted a business at the Boral Cement Facility located at Taylor Avenue, New Berrima (the site).

11. Boral Cement was completing its annual shutdown at the site. During the shutdown Boral Construction contracted with Nepean to provide engineering services involving planned maintenance services pertaining to bucket elevator conveyor EL013 (EL013) at the site.

12. Nepean had provided a schedule of rates to Boral Cement or Boral Construction for the scope requested and a Boral Work Order #7228867 pertained to the work.

13. The work to be performed involved the removal of the old conveyor belt on EL013, the installation of a new conveyor belt, and refurbishment of buckets on the belt. With Boral, Nepean was engaged to oversee the task of the refurbishment of and installation of the buckets on the new conveyor belt and the joining of the new conveyor belt once it had been lifted into position.

14. Boral Cement had engaged Fenner Dunlop Australia Pty Ltd (Fenner) to provide services associated with the replacement of the belt for EL013, including the joining of the conveyor belt as part of the maintenance service being conducted during the annual shutdown.

15. WGC Cranes Pty Ltd (WGC) was engaged by Boral Cement to provide a crane to lift the old conveyor belt from EL013 and then lift the new conveyor belt into position.

16. Beumer Group Australia Pty Ltd (Beumer Group) was engaged as the Original Equipment Manufacturer by Boral Cement to provide advice in relation to the work being performed on EL013, including the manner in which the work was to be carried out.

Bucket Elevator Conveyor EL013

17. EL013, manufactured by Beumer Group, was used at the site to transport raw material as part of the process of making cement. Several other bucket elevator conveyors were present at the site.

18. EL013 was installed in 1998 and was located at Pre-Heater Tower No 1, a structure approximately 7 stories high. The conveyor of EL013 ran from the ground to level 7. The conveyor was approximately 60m high, with a steel wire cored rubber conveyor belt that was 120m long. There were approximately 229 buckets on the conveyor belt of EL013, each weighing approximately 24kg.

19. EL013’s drive motor was located on top of a 2.2 metre high platform measuring approximately 4100mm wide and 4850mm long. The drive assembly was mounted on a steel frame and access to it was via a staircase.

20. The drive mechanism consisted of a large 3-phase electrical motor, a Voith Turbo manufactured Fluid Coupling (Voith Coupling) and a 37.6 to 1 gear drive. The electric motor connected to the Voith Coupling, which then connected to the gearbox, which in turn connected to the head drive pulley of the conveyor.

21. The Voith Coupling was used to transfer rotational power from one shaft to another using transmission fluid. Its main components consisted of two bladed wheels, the pump impeller and the turbine wheel, enclosed by a cover. A constant amount of operating fluid was in the coupling.

22. The Voith Coupling cover was approximately 360mm wide x 550mm deep x 530mm high and was made from approximately 2mm plate steel and mesh.

23. During normal operation the Voith Coupling was run by motorised equipment and regulated the temperature within it. If that failed, the Voith Coupling was equipped with 160 degree Celsius fusible plugs designed to burst and release oil from the main chamber, to protect the whole housing from cracking and the coupling from damage.

24. The conveyor belt was equipped with brakes and a back stop. The brake was designed only to prevent the conveyor belt from going backwards.

Workers

Nepean

25. The following workers were engaged by Nepean:

26. Martyn Patterson, Senior Site Manager

27. Chris Jansen, Mechanical Engineer

28. Brian Felix, Leading Hand Boilermaker

29. Brendan Slater, Boilermaker

30. Daniel Bevan, Boilermaker

31. Ben Patterson, Boilermaker (he left prior to the incident at 2pm)

32. Brad Cox, Fitter

33. Brad Astil, Fitter

34. Brett Marshall, labour hire fitter (he left prior to the incident at 2pm)

35. Mr Martyn Patterson was employed by Nepean as a Senior Site Supervisor and was the supervisor of Nepean’s workers involved in the task of replacing the belt of EL013.

36. Mr Jansen had been employed by Nepean for approximately one week at the time he attended the site. Mr Jansen was to assist Mr Patterson in determining the scope of works and overseeing Nepean’s work.

37. Mr Slater held a boilermaker trade certificate. He had performed work on conveyor belts but had not performed work on bucket elevators before. He had not previously attended the site.

Boral

29. The following workers were engaged by Boral Cement:

30. Michael Davis, Asset and Planning Superintendent

31. Roger Ragg, Production Department Shift Worker

32. Daniel Burgess, Production Department Shift Worker

33. Paul Smith

34. Mr Ragg and Mr Burgess were shift workers generally not involved in maintenance procedures, however, on the day of the incident they were called by Boral Cement to assist in undertaking the inching and barring of the conveyor belt.

35. Mr Davis was employed or otherwise engaged by Boral Cement as the Asset and Planning Superintendent. He was the Authorised Works Controller for the task of replacing the belt of EL013. Mr Davis was not on site at the time of the incident.

36. Mr Davis was the lead or overall supervisor for the task of replacing the belt of EL013, including on the day of the incident. He undertook various steps as part of this supervision, including:

37. Consulting with Beumer Group regarding the methodology for removing and replacing the belt of EL013.

38. Reviewing and signing off, as the person supervising the work, a Safe Work Method Statement (SWMS) titled “SWMS EL013 - Replace belt buckets” dated 9 February 2022. This was on Boral Cement letterhead and was prepared by Nepean (Nepean SWMS).

39. Engaging with the Beumer Group regarding the progress of the replacement of the belt of EL013.

Fenner

33. Mr Douglas Bennett had been employed by Fenner for approximately twenty years. He was employed as a level three conveyor belt technician and was engaged to complete the joint in the new conveyor belt. He was present on site to verify the position of the belt join to take place, which he was scheduled to perform the day after the incident.

Beumer Group

34. Mr Jagdeep Singh Gill Gurcharan Singh (Mr Jack Gill) was employed by Beumer Group. Mr Gill had approximately 22 years work experience in different countries concerning bucket elevators and conveyors. Remote support and online supervision via WhatsApp was provided by Beumer Group for the task via Mr Gill.

35. Beumer Group had been present on site for previous belt replacements and provided warranties for those replacements.

13 February 2022

36. Nepean had commenced work for the shutdown on site on 9 February 2021. In the days prior to 13 February 2022 the old conveyor belt was cut and removed, from EL013 using a 500T mobile crane supplied by WGC.

37. Fenner had initially assisted Nepean on the joining of the conveyor belt. However, on Friday 11 February 2022 Mr Bennett assisted in changing the conveyor belt and joiner on EL013 over the weekend. Mr Gauci and Mr Davis had requested Fenner’s assistance with the belt change.

38. On 13 February 2022, when Mr Bennett arrived at the site he attended a general Boral Cement induction, signed on and discussed what was going to happen for the day. Mr Davis was present on site to supervise the work for part of the day. After Mr Davis’ departure, Mr Martyn Patterson of Nepean was supervising the work being performed by Nepean’s workers.

39. The task to be performed on the day was to complete the installation of the new conveyor belt on EL013. Once it was installed, a temporary joint was to be made on the belt at the bottom and then the conveyor would be run to locate the joint at the top of the head roller, to complete the joint. Boral Cement had placed isolation locks from the control room of EL013 on the conveyor to prevent it mechanically moving while the belt was being installed.

40. Initially it was intended that the new conveyor belt was to be lifted into position with all 229 buckets attached, as well as the head roller, using the 500T mobile crane in a similar way to the removal of the old belt with all buckets attached. However, the weight on site was determined to be heavier than the estimate provided.

41. As a result, in preparation for installing the new conveyor belt, an estimated 116 buckets were removed from the conveyor belt so that the weight of the conveyor belt and head roller was able to be lifted. The crane lifted the new belt with some buckets attached and the head roller into position in the chute of EL013 using a jib attachment. The ends of the conveyor belt were rolled up and secured as the crane did not have the capacity to lift the belt high enough to clear the chute housing.

42. The buckets had been not removed in an even order across the length of the belt. On either side of the crane jib hook, there was a series of buckets one after the other at the top of the belt. Below that there was a large section of belt hanging down on both sides with no buckets. Once the 116 buckets had been removed only approximately half of the total buckets were installed. The effect of this meant that once the belt was turned over the head roller of the conveyor, the total weight of the belt and buckets would not be evenly distributed on both sides of the head roller.

43. Once the conveyor belt was placed in the chute of EL013, Mr Bennett and Mr Astil performed the initial join of the two tail sections of the belt by splicing the metal core wires of the belt together. This task was performed at the bottom of the conveyor near the tail roller.

Injuries

63. As a result of the incident Mr Bennett suffered multiple fractures to his skull, six broken ribs, a moderate brain injury causing migraines and headaches, loss of vision, loss of hearing requiring hearing aids, bowel and stomach issues and numbness to the right leg and foot creating difficulties walking. He is receiving physiotherapy for his injuries and takes pain medication. He is unable to drive and has no indication of whether he will fully recover from the injuries received.

Post-Incident Investigation

64. At the time of the incident there were approximately 114 buckets installed on the belt out of a total of 229. The post-incident investigation indicated that there was no power supply to the main motor at the time of the incident. The conveyor belt had reached a high speed in a short time and as there was no mechanical contribution, the Voith Coupling was unable to cool itself.

65. Nepean prepared an Incident Investigation Report. The report notes:

“The coupling connecting the gearbox with the drive unit exploded as a result of extreme speed, heat and conditions

Contributing Factors

Manufactures procedure of bucket elevator installation instructions were not followed exactly as they should have been.

Absent or Failed Defences

Incorrect Crane used at the beginning of the job requiring removing half the buckets which meant uneven load when inching took place causing the belt to take off and become unstoppable and uncontrollable.”

66. Nepean’s Employee Assistance Program prepared a Critical Incident Report dated 18 February 2022. The Report notes:

“The employees expressed that the site was not adequately reviewed prior to work. They also felt they were not equipped to deal to with such a dangerous environment.”

67. The Beumer Group Travel Report*,* completed by Mr Gill, dated 15 March 2022 page 1/15 states:

“...the new belt clamping which was done in the boot section was being driven with the inching drive to the top section of the drive pulley for the preparation of wire splicing and white metal casting. Due to the unbalance of the buckets, the bucket elevator [went] into a free run and this caused the fluid coupling to crack under pressure. The fluid coupling is equipped with 160G fusible plugs to burst the hot oil out, but the fluid coupling housing cracked before the fusible plug could burst the hot oil out. The debris pierced through the fluid coupling metal cover and hit a worker...”

68. The Boral HESQ Alert dated 16 February 2022 states:

“During the process of refitting the new belt, the belt began to move rapidly in an uncontrolled manner. The rapid movement of the belt appears to be related to an uneven distribution of bucket weight on the replaced belt. A failure of the fluid coupling occurred during the uncontrolled movement. Metal fragments were ejected from the fluid coupling, with some of those fragments contacting the back of the helmet on the head of a contract worker. The contract worker sustained a head injury and was transported to hospital.”

69. An inspection by SafeWork NSW (SafeWork) found:

70. No buckets could be observed as attached to the belt when looking down into the enclosed elevator housing.

71. The metal cover for the fluid drive coupling had sustained significant impact and had split the cover and twisted it out of shape.

72. Boral Cement Lead Engineer & Design Manager Mr Jonathan Charlesworth estimated that the coupling was rotating an estimated 10,000 revolutions per minute (RPM), which is 8,500 RPM faster than the estimated normal 1,500. Mr Charlesworth’s qualifications include MIEUAUST, NER RPEQ, CPENG and he has chartered status in mechanical and structural engineering.

73. Mr Gill concluded that the conveyor belt was operating at a speed beyond its normal RPM which subsequently led to the failure of the coupling.

Systems of Work Before the Incident

72. EL013’s conveyor belt had been last changed in February 2017. The conveyor belt had been replaced 3 to 5 times prior to the most recent replacement. EL013 had undergone one gearbox change prior to the incident. Nepean was not involved in prior belt replacements on EL013.

73. A Beumer Group belt replacement report dated 7 February 2017, referring to the proposed belt replacement of EL013 in February 2017, notes the work was performed on that occasion as follows:

74. Dismantle all 229 buckets and open the top cover.

75. Lift tension pulley to its highest position to allow more free space for new belt installation and connection.

76. Cut the existing clamping connection inside the bucket boot after dismantling all the buckets, connect new belt to the old belt and slowly draw the new belt in and pull the old belt out using electric winch installed on the truck.

77. Clamp the belt inside bucket boot and turn clamping connection to the bucket head, tighten clamping connection with 500 Nm torques, splice and cast clamping connection.

78. Install 229 buckets with indentation depth 4 mm. There are some buckets where the intermediate plate is too deep; the indentation depth tightening has to be more than 4 mm to prevent loosening later.

79. Align the belt at tension pulley so that it runs at the centre. At drive pulley, the belt also runs at its centre.

80. Nepean had been provided a copy of the Beumer Operating Instructions Manual for EL13 Belt Bucket Elevator document identifier BCBS Dwg 31934 (Beumer Group Manual) by Boral Cement. The manual specified at 5.4.1 information for assembly of the belt and said:

“Afterwards, the buckets have to be mounted”.

75. Boral Cement also had a document titled EL13 Belt Replacement (Boral EL13 Belt Replacement document) which was applied during the 2017 belt replacement of EL013. Section 5 “Technical Specification” at 5.3 provided installation stages which require the new belt to be installed and clamped prior to:

“(m) Mount the buckets to the new belt as per Beumer instructions taking care again to monitor belt balance so as to avoid belt run back.”

76. The belt replacement in 2017 followed the Beumer Group Manual’s instructions and the Boral EL13 Belt Replacement document.

JSEA and Nepean SWMS

77. Nepean had completed or been involved in one previous belt change at a different Boral site at Maldon in December 2021 - January 2022, prior to starting work on conveyor EL013. The involved conveyor at the Maldon site was an elevator conveyor although it was chain driven with plastic buckets being physically attached to the chains. The system did not comprise of steel buckets attached to a rubber conveyor belt and the task of replacing the conveyor followed a different methodology than that adopted by Boral Cement for the replacement of the belt on EL013.

78. The conveyor at the Maldon site was significantly smaller and lighter than EL013.

79. Prior to the shutdown at the site, Mr Patterson and Mr Jansen went to the site to determine the labour requirements and scope of the work to be completed on the conveyor. Mr Jansen had not been to the site before and attended in his first week of starting work for Nepean. Mr Jansen attended with Mr Patterson as a form of secondary site supervisory support.

80. Boral Cement developed the process for the work in consultation with Beumer Group. Mr Davis showed Mr Jansen and Mr Patterson the machinery and the three discussed the task to occur. The scope was determined to be the replacement of the bucket elevator belt and buckets with refurbished or new buckets. The initial process determined by Boral Cement for installing the new conveyor belt was to lift the conveyor belt, with all buckets attached to it, into place. This process had been adopted at Boral facilities previously.

81. Boral Cement had made arrangements with WGC to provide a crane for the works. The estimated weight had been provided to WGC by Boral Cement.

82. On 5 February 2022 Mr Davies sent an email to Beumer Group representatives requesting instructions for the conveyor belt change. In return, Beumer Group sent an email to Mr Davies on 7 February 2022 with illustrative pictures showing the process of utilising a crane to lift new conveyor belt into position. The pictures depicted the lifting of a conveyor belt with all buckets mounted to the belt. Mr Davis subsequently forwarded the pictures to Mr Patterson.

83. Nepean, after consulting with Boral Cement about the job completed a Job Safety Environmental Analysis (JSEA) for “Bucket & Belt change out” dated 9 February 2022. The JSEA did not identify or address risks associated with the specific task of changing the conveyor and buckets, including removing the buckets, inching the belt, or risks associated with the free run of the belt.

84. After consulting with Boral Cement about the job, Mr Jansen and Mr Patterson of Nepean prepared a SWMS titled “SWMS EL013- Replace belt buckets” dated 9 February 2022 on Boral letterhead (Nepean SWMS).

85. The Nepean SWMS was used by Nepean and Fenner. The Nepean SWMS says, among other things, to remove the hatches and hood, and measures such as:

“Drawing-in hazard, as the bucket elevator belt moves involuntarily due to the weight imbalance. Distribute the buckets equally on the belt and mount them so as to ensure that the belt is in balance…

…At first only a certain number of buckets is [sic] mounted so as to ensure that the belt is in balance. On bucket elevators with a height up to… 70m, about every 10th bucket is to be mounted… The remaining buckets are distributed evenly in the gaps and mounted.”

99. There was a text exchange in the WhatsApp group chat between 12 February 2022 4:02:25 pm to 13 February 2022 3:46:36 pm. Some of the WhatsApp texts exchanged with Mr Gill on 13 February 2022 regarding the process included:

100. Mr Gill at 8:32 am asked, “Some photos before lift will be good for me to see any issues...”. Some photographs were then sent, including part of the belt on the ground showing buckets attached. The photographs did not depict the remainder of the belt with no buckets attached.

101. Mr Gill at 8:39am asked “Can I pls get a picture of the end of the belt at the clamping connect?”. In response, Mr Gill was sent a photograph by Mr Davies of the belt being lifted via the crane with the words “Elevator has been dropped into cases and boys are currently doing head drum and coupling up”. The photograph was taken from a distance and Mr Gill was unable to clearly see the belt length or bucket locations from the photograph.

102. At 3:39:37 pm, Mr Davis said on WhatsApp, “Plan is to get the join up the top this afternoon and finish for e [sic] day. Complete works tomorrow morning”.

103. At 3:42:21 pm Mr Gill said, “Becareful [sic] when stopping the bucket as it may keep turning due to imbalance of buckets”. Mr Patterson replied, “Yes we have ready to go”. Mr Gill said, “Do the drive unit have a inching. auxliary [sic] drive?” and sent a pdf image of the counterweight bucket sequence. Mr Patterson said, “Yes”. Mr Gill said, “This is the sequence of the buckets with the welded counterweight in it. Should have 7 buckets to balance the weight of the clamp”.

104. Neither Nepean nor Boral Cement contacted Mr Gill to inform him that they had removed a number of buckets from the conveyor belt for the lift. Mr Gill was not informed the belt did not have buckets evenly distributed nor was he aware that the original belt had been cut for removal.

105. Mr Gill was not consulted on, or asked, specific information regarding the number of buckets mounted on the belt of the bucket elevator or where they were to be mounted and distributed on the belt. He was not asked for advice on the method of inching or barring of the belt or the potential hazard of imbalance or the belt free running, given the number and configuration of buckets mounted on the belt.

106. Despite the content of the SWMS and JSEA, Mr Patterson had considered the risk of an over-run after the decision to change the process was made. Mr Patterson spoke to Mr Davis from Boral Cement and enquired as to whether the brake on EL013 would stop and be able to hold the new conveyor belt.

107. The brake was designed to prevent the conveyor moving backwards as opposed to forwards. Nepean did not familiarise itself with the function of the brake prior to performing the work.

Mr Blair McNeill

104. Mr Blair McNeill, Mechanical Engineer provided a report dated 10 January 2024 and an Addendum dated 6 February 2024. In his combined reports Mr McNeill noted:

105. The estimated RPM for the bucket conveyor was calculated at 377 RPM, which exposes the coupling and gearbox to an approximate speed of 13,000 RPM. This is about 8 times its normal operational speed. Such an extreme overspeed is well beyond what the coupling is designed to withstand. It is reasonable to expect failure at such a high rotational speed due to the severe internal forces exerted on the housing of the coupling.

106. The hazard of the coupling potentially failing existed due to incorrect processes in fitting and managing the belt while there was an unbalanced weight distribution.

107. The PCBUs should have recognised the potential risk of the bucket elevator lacking safety controls to mitigate uncontrolled forward motion

108. Failure capturing the actual tasks at hand in the SWMS has led to the incident occurring.

109. Disconnecting the fluid coupling from the gearbox would mitigate the risk associated with a coupling failure due to overspeed. This disconnection isolates the coupling from the bucket elevator’s rotation. As a result, the rotation from the bucket elevator is not transferred to the coupling.

Guidance Material

105. In addition to the Beumer Group operating manuals and instructions, the Voith Installation and Operating Manual - Turbo Couplings with Constant Fill Manual (Voith Manual) states under section 3.2 “General information as to dangerous situations” noted:

“Temperature rise in the turbo coupling:

The coupling temperature rises during operation. Please provide a guard for protection against contact with the coupling! However, ventilation of coupling must not be impaired...

Sprayed-off operating fluid:

In the event of thermal overload of the turbo coupling, the fusible plugs respond. Operating fluid is discharged through these fusible plugs. Please ensure that the spray off operating fluid cannot get in contact with persons! Danger of burning!”

106. Section 3.3 pf the Voith Manual under “Important information as to operation” noted:

“Temperature rise during startup:

During startup, the temperature in the turbo coupling rises more than during steady operation due to a higher slip. Observe that the intervals between starts are sufficient to avoid thermal overload.”

107. On 3 June 2002 the United States Department of Labor Mine Safety and Health Administration released a Report of Investigation into the death of a maintenance mechanic who was fatally injured when he was struck by metal fragments. The accident occurred due to a catastrophic failure of one of the components, which caused a bucket conveyor to over speed in the reverse direction.

108. On 3 September 2012 www.safeguarry.com published an incident overview concerning the inching and barring of an unbalanced load in a cement mill, which caused the mill to unexpectedly turn in the reverse direction. A failure resulted in fragments of the drive being ejected at speed.

Australian Standards

109. “Australian Standard 4024.1801: Safety distances to prevent danger zones being reached by upper and lower limbs” was available and in place at the time of the incident.

110. Part 4 of AS4024:1801 required a risk assessment to be undertaken to establish the probability of occurrence of an injury and the foreseeable severity of that injury.

Codes of Practice

111. At the time of the Incident, the SafeWork NSW “Code of Practice Managing the Risks of Plant in the Workplace - August 2019*”* (Code of Practice Risks of Plant) was in place:

112. Section 3.4 “Making changes” noted:

“If the person with management or control of the plant intends to... change a system of work associated with the plant, the person should carry out the risk management process again.”

2. Appendix C-Hazard checklist listed the following question relating to “High Pressure Fluid”:

“Can anyone come into contact with fluids under high pressure, due to plant failure or misuse of the plant?”

3. Appendix C also listed the following questions relating to Hazard combination

“Can anyone be injured due to unexpected start-up, unexpected over­ run/over-speed or similar ma/function from:

- Failure/disorder of the control system, for example a hydraulic system?

- Restoring energy supply after an interruption?

- Other environmental factors, for example gravity or wind?”

112. At all material times, the SafeWork NSW “Code of Practice How to Manage Work Health and Safety Risks - December 2011” (Code of Practice How to Manage WHS Risks) and the SafeWork NSW Guide to Machine Safety were also in place.

Steps following the Incident

113. After the incident, work was stopped and reviewed. Consultation occurred between Nepean, Boral Cement and Fenner, and a methodology was developed.

114. The finalisation of the conveyor belt subsequently occurred via the following process:

115. Area inspected and cleaned.

116. All drives electrically isolated.

117. Used no-touch tools to attach slings to tail pulley. Secured tail pulley with come-a-longs to prevent movement.

118. Split coupling.

119. Cut into chute structure near head pulley.

120. Installed 4x belt clamps in 2x new openings and secured belt from movement in both directions.

121. Removed tail pulley mechanical isolation.

122. Manually moved belt via 8x chain blocks to rotate and install remaining buckets.

Evidence for the Defendant

115. Mr Campbell Saunders affirmed an affidavit on 24 September 2025. Mr Saunders is the National Safety Manager employed by Nepean No1 Pty Ltd (Nepean No1). The defendant Nepean is a wholly owned subsidiary of Nepean No1.

Background

116. Mr Saunders commenced his role as National Safety Manager at Nepean No1 in September 2024. Prior to commencing this role, he was employed by Nepean Building & Infrastructure Pty Ltd, which is another company in the Nepean No1 portfolio, as a National HSEQ Manager from November 2022.

117. Mr Saunders has obtained the following health and safety qualifications:

118. A Diploma and Certificate IV in Occupational Safety in 2010;

119. A Graduate Certificate in Occupational Health and Safety in 2013; and

120. A master’s degree in Workplace Health and Safety in 2017.

121. The purpose of Mr Saunders’ role is to lead the Quality, Safety and Environment assurance effort for Nepean No1, in conjunction with management, and be responsible for implementing, maintaining, continuously improving, and promoting safety systems and legislative compliance throughout Nepean No1’s Australian based businesses.

122. Nepean has a safety management system which is certified against ISO 45001 - Occupational health and safety management systems. Nepean’s safety management system includes Nepean’s WHSQ Management Plan and QSE Manual which, among other things, provide for:

123. Risk management

124. Change management

125. Assurance

126. Incident investigation

127. Consultation

128. External surveillance audits are conducted annually and external certification audits are conducted every three years to verify effectiveness and compliance with the ISO 45001 standard.

129. One of the areas Mr Saunders had focussed on across Nepean No 1’s Australian based businesses is improving incident investigations. Where an incident, such as an accident, a high potential incident or a near miss occurs requiring an investigation to be undertaken within one of the businesses, Mr Saunders reviews the investigation and works with the relevant safety manager to develop strategies to prevent recurrence. Part of Mr Saunders’ work involves mentoring of safety managers within the business to improve the quality of investigations and outcomes.

130. Since Mr Saunders commenced working in his role, the work that he had undertaken specific to Nepean focussed on two key areas, being:

131. Culture:

(a) Working with Nepean’s key leadership to engage in more safety discussions with their teams. This includes a plan to set simple, achievable, measurable targets and record those conversations in an online system. Further training in this area for leaders is planned. (b) Conducting a safety survey across the business as a way of helping to understand how the team views safety in general, but also focussed on safety processes, procedures and management. (c) Increased presence on the workshop floor, improving ownership of and accountability for safety and making people accountable for safety.

2. Compliance:

(a) The team at Nepean have started to record more lead indicators (hazards and near misses) within Nepean’s online system. The business is currently determining appropriate targets for the 2025-2026 financial year against which these indicators can be compared to enable the business to measure success in this area. (b) Introducing more safety topics through Nepean’s weekly toolbox talks and encouraging teams to be more actively involved in those discussions to highlight gaps in processes or procedures and to improve overall communication as it relates to safety across the business. (c) Improved overall contractor management on site, from inductions to improving monitoring of contractors’ compliance with appropriate risk management frameworks, including risk assessments and safe work method statements and job safety analyses. (d) Investing significant time in improving injury management processes, including return to work, incident and injury investigations to determine root cause and contributing factors.

Statement of Contrition

123. Nepean and Mr Saunders sincerely regret that the incident on 13 February 2022 occurred and recognise and regret the significant impact that the serious injuries suffered by Mr Bennett have had on him, his family and friends, and his colleagues.

124. Nepean and Mr Saunders also sincerely regret that, as a result of its failures, Messrs Felix, Astil and Bevan, were also exposed to a risk of serious injury or death.

125. Nepean accepts that on 13 February 2022 it failed to comply with its duty to ensure, so far as was reasonably practicable, the health and safety of Messrs Bennett, Burgess, Ragg, Felix, Cox, Astil and Bevan. Nepean accepts that on 13 February 2022, as a consequence of this failure, Mr Bennett suffered serious injuries.

126. Mr Saunders was authorised by Nepean’s director, Mr Roelof Van Rooyen, and the Manager of Nepean, Mr Johan Dreyer, to unreservedly apologise on behalf of Nepean to:

127. Mr Bennet and his family;

128. Mr Felix;

129. Mr Astil;

130. Mr Bevan; and

131. the Court

for Nepean’s failure, the resulting exposure to risk to the workers and the serious injuries suffered by Mr Bennett.

Nepean Innovation and Engineering

127. Nepean was founded in 1974 by Mr David Fuller. Mr Fuller was a toolmaker. He commenced Nepean’s operations at a premises in Narellan, which Nepean continued to operate from for 50 years. Nepean relocated close by to Prestons in July 2025.

128. Nepean is a wholly owned subsidiary of Nepean No1. Nepean No1 is now a privately owned global organisation and industry leader in mining equipment and industrial manufacturing,

129. Nepean No1 provides shared services to companies within Nepean No1’s portfolio, including Nepean.

130. Nepean has approximately 110 workers in its business, which includes Nepean’s Site Services Team, the team undertaking the work at the site at the time of the Incident.

131. The majority of Nepean’s workforce are trades persons, with approximately 80 trades persons engaged within Nepean at any point in time.

132. Nepean has a dedicated WHSE Manager who is responsible for developing, implementing, and improving systems and initiatives aimed at providing a safe, healthy, and environmentally compliant workplace.

Site Services Division

133. Nepean’s Site Services Division, which was the division of the business working at the site at the time of the Incident, was created in or around August 2020 under Mr Marty Patterson. Mr Patterson was employed by Nepean in our around June 2020 as part of the planned development of a specific site services capability within the business. Nepean did undertake work offsite prior to the creation of the Site Services Division, however, this was limited to undertaking structural steel rigging and erection on a supply and install basis.

134. The Site Services Division has not undertaken any work on any elevator conveyor systems since the completion of the work subject of the Incident.

135. Since the Incident, the Site Services Division has primarily been undertaking the installation of large pipes, valves and pump systems for customers handling large volumes of various materials through these types of systems. Other work has included on-site installation of items designed and manufactured by Nepean, such as large reinforced doors with blast proof capabilities.

Relationship with Boral Cement

136. In or around November 2021, Nepean’s General Manager at that time, Mr Peter Buckley, had discussions and entered into an overarching agreement to provide site services to Boral Cement and its related entities.

137. An account was opened for “Boral Shared Services” in December 2021 which allowed Nepean to undertake work for Boral Cement and its related entities. Boral Shared Services did not prior to December 2021 have an account with Nepean.

138. Aside from finalising the conveyor installation following the Incident, Nepean has not undertaken any further work for Boral Cement under the contract or at all.

Improvements to Work Health and Safety following the Incident

139. Nepean reviewed its job safety environmental analysis (JSEA) template and has updated the template by removing generic job steps so that workers are required to consider all required job steps when undertaking the analysis for a task and completing the JSEA.

140. In May 2024, Nepean implemented a documented “Take 5” risk assessment procedure which set out Nepean’s requirements for its workers to complete a Take 5 risk assessment when undertaking high-risk or non-routine jobs. Nepean also provided its workers with a booklet containing its Take 5 risk assessment forms. The Take 5 risk assessment procedure provides that “Take 5 assessments must be repeated if there are any changes within the scope of the task being completed...”. The procedure also provides that “[Nepean] employees must not continue with a task if they have any doubts or if they believe, after assessing the risks, that the current method might be unsafe.”

141. Nepean is currently in the process of updating the risk assessment form, including using a digital process rather than a hard copy form.

142. At the time of the Incident, Nepean had a dedicated Work Health and Safety, Environment and Quality (WHSEQ) Manager. At the end of 2024 a decision was taken to divide this role so that there is a separate Quality Manager and a WHSE Manager. This provided increased capacity for the WHSE Manager to focus on the Health, Safety and Environment aspects of Nepean’s operations.

143. Nepean has recently introduced Nepean No1’s Life Saver Rules through incorporating the Life Saver Rules into Nepean’s induction process and communicating the Life Saver Rules to Nepean’s workers as part of a campaign to promote adherence to these rules within the business. The final stage of introducing the Life Saver Rules is to distribute posters containing the Life Saver Rules throughout Nepean’s workplace, which is currently underway.

144. Following a recruitment process, Nepean’s WHSE Manager, Mivvi Turner, was employed by Nepean on 14 April 2025 and is still currently employed in that role.

145. During the recruitment period for the WHSE Manager role, Nepean had a Safety Coordinator in the business and Mr Saunders, in his role as the National Safety Manager for Nepean No1, was active in the business to provide additional support.

146. In October 2023 a strategic review was commenced in relation to Nepean’s operations to consider any opportunities for improvements. This included consideration of opportunities to make improvements in relation to health and safety.

147. One of the outcomes of the strategic review was a decision to move Nepean’s operations to a new premise in Prestons, New South Wales (the Prestons Site) in June 2025.

Support provided to workers following the Incident

149. Following the Incident, Nepean arranged for Acacia EAP to attend its Narellan premises on 14 February 2022 to meet with the Nepean employees who were present on the day of the incident. A psychologist from Acacia EAP attended on 5 of the 6 Nepean employees who were present on the day of the incident to provide support in relation to the Incident.

150. On 16 February 2022, the psychologist then made further telephone contact with the Nepean employees, including the employee who was not present on 14 February 2022.

Community Contributions

151. Nepean has contributed to the Camden local community over many years. Some examples include:

152. Nepean is a longstanding sponsor of the Camden Show Society. In 2024 Nepean donated signage to the Camen Show Society to the value of $2,600. In 2025 Nepean built mobile grandstands for the Camden Show Society which were partly paid for by the Camden Show Society, with Nepean’s donated contribution to grandstands being approximately $27,000 in value.

153. In 2024 Nepean sponsored the Western Sydney University Formula SAE team by building their vehicle spaceframe and wheels. Formula SAE is a student design competition organised by SAE International in which a team of university students design and develop a small formula-style racing car.

154. Earlier this year, Nepean donated steel workbenches and cupboards to the Camden Men’s Shed.

155. When undertaking its relocation to the Prestons Site, Nepean donated all kitchen items from the Narellan premises to Mother Hubbard’s Cupboard in Camden, a not-for-profit opportunity shop located in Camden.

Cooperation with SafeWork

152. Nepean cooperated with the SafeWork investigation following the Incident and complied with all statutory notices issued by SafeWork as part of its investigation.

153. Nepean has also cooperated with SafeWork legal representatives for the purposes of their preparation for the related proceedings arising from the Incident by facilitating the availability, to the extent permitted by law, of its employees who are proposed to be witnesses in the related proceedings and offering to make materials available to the SafeWork without the need for a subpoena to be issued to Nepean.

Consideration

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

Objective Seriousness of the Offence

155. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen *(*No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

156. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

157. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

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

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

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

160. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

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

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

162. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

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

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

164. My findings about the defendant’s level of culpability are based upon the following:

165. The risk was known to and foreseen by Nepean. Further, it was specifically the subject of a warning in the Beumer Group material.

166. On the agreed facts, Nepean says that it raised its concerns and was misinformed that the brake would stop the conveyor belt if it was out of balance. However, Nepean did not check what was said. In any event, using the brake was only an emergency measure if the conveyor belt ran out of control. Nepean should never have created or contributed to the risk of the belt going into freefall in the first place.

167. If an appropriate crane had been provided, the job could have been done without creating the risk which eventuated. However, when the crane was unsuitable for the task, there was a significant change to the work method. There was a fundamental need (for the reasons set out in MFI 1, par 21c) for Nepean to step back and conduct its own risk assessment for the new method.

168. There was a certainty that the risk would occur once the buckets were loaded in an uneven distribution on the conveyor belt and the uneven weight passed over the top roller.

169. The potential consequences of the risk were death or serious injury.

170. There were simple and available steps to eliminate or minimise the risk, as pleaded in Annexure A of the Amended Summons.

171. There was no burden, cost or inconvenience of implementing those steps.

172. The injuries suffered by Mr Bennett were extensive and serious.

173. The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.

174. On the facts agreed between SafeWork and Nepean, there were arguably contributions to the risk by other parties on site. However, the contract to deal with the conveyor refurbishment was Nepean’s contract to perform safely.

175. Nepean was not a company which took no steps or which was reckless in carrying out the work. As conceded by the plea of guilty, it did not do enough to discharge its safety duty under the WHS Act.

176. This was not a routine task but a one-off task. All the more reason for a risk assessment to be completed before the task was commenced.

177. I find that the level of culpability of Nepean is in the mid range.

Deterrence

166. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

167. The penalty must reflect the need for specific deterrence. Nepean is still conducting a business. Its operations involve the provision of engineering services and the continuing engagement of workers.

Aggravating Factors

168. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

169. Nepean has no previous convictions: s 21A(3)(e) CSP Act. Nepean has been in business for approximately 51 years. That factor will result in a moderation of the penalty which would otherwise be imposed.

170. Nepean is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this.

171. Nepean is unlikely to re-offend: s 21A(3)(g) CSP Act.

172. Nepean has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

173. Nepean has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Bennett was caused by its actions.

174. Nepean entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Nepean a 25 % discount for an early plea.

175. Nepean gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

176. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

177. 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.”

178. There was no submission about capacity to pay, so this issue does not arise.

Costs

179. There will be an order that the defendant is to pay the prosecutor’s costs.

Penalty

180. My orders are:

181. Nepean Engineering and Innovation Pty Ltd is convicted.

182. The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.

183. Order Nepean Engineering and Innovation Pty Ltd to pay a fine of $225,000.

184. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

185. Order Nepean Engineering and Innovation Pty Ltd to pay the prosecutor’s costs.

**********