SafeWork NSW v Solution Hoist Hire Pty Ltd

Category: Principal judgment

Parties: SafeWork NSW (Prosecutor)
Solution Hoist Hire Pty Ltd (Offender)

Representation: Counsel:
J Simpson (Prosecutor)
M Baroni (Offender)
Solicitors:
SafeWork NSW (Prosecutor)
Wotton Kearney (Offender)

File Number(s): 2025/00150185

Publication restriction: Nil

JUDGMENT

1. On 21 April 2023 Mr Hans Peterson, a maintenance fitter employed by Solution Hoist Hire Pty Ltd (the offender), was converting an electric hoist’s power supply when his arm touched the energised busbar he was installing to supply the hoist with electricity, causing him to suffer an electric shock and serious burns.

2. SafeWork NSW (the prosecutor) instituted proceedings against the offender by way of a summons filed on 17 April 2025 which was amended on 16 February 2026. The offender subsequently entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act): namely, that it failed to comply with its duty pursuant to s 19(1) of the WHS Act to ensure, as far as is reasonably practicable, the health and safety of workers, and in particular Mr Peterson.

3. The risk to health and safety to which the offender pleaded guilty was particularised in the amended summons as:

“The risk of workers, in particular Mr Peterson, suffering death or serious injury as a result of receiving an electric shock, as a consequence of coming into contact with exposed power conductors, energised busbar components, and/or electrical circuits during the conversion work.”

4. By its plea of guilty the offender accepts it could have taken one or more of the following reasonably practicable measures to eliminate or minimise the pleaded risk:

“(a) Conducting and documenting an adequate risk assessment prior to commencement of the conversion work, that identified the risks and hazards associated with the conversion work and implementing the most effective control measures to alleviate the risk inclusive of those identified at particulars (b) to (f) below;

(b) Whilst the power supply to the hoist is turned off, confirming that the conductors and/or electrical elements of the installed busbars have been adequately isolated prior to re-instating power to the hoist/energisation of the busbars during the conversion process, for example, by way of:

Using appropriate physical protection made of non-conductive material such as insulated covers or insulated caps to cover the conductive elements of the busbar.

(c) Implementing a requirement and enforcing the requirement, that the conversion work to be undertaken by a qualified and competent electrician holding a validly issued electrical licence;

(d) Undertaking appropriate checks and/or making appropriate enquiries with respect to the competencies and qualifications of workers to perform work involving energised electrical components prior to allowing workers to conduct such work;

(e) Confirming that workers involved in the conversion work are provided with, and are using, appropriate personal protective equipment such as insulated work gloves and/or insulated mats;

(f) Developing, implementing and enforcing an adequate safe work procedure or work method including a nominated, step by step procedure, for the conversion of the hoist power source to a busbar system which identified the installation process of the busbar having regard to particulars (b) to (e) above; and/or

(g) Supervising or providing supervision and monitoring of the works to be conducted by workers to convert the hoist power supply to a busbar system to ensure compliance with the above processes and requirements.”

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

Factual background

6. The prosecutor filed an agreed statement of facts. What follows is a summary of the key facts on which I sentence the offender.

Supply and installation of hoists by the offender

7. In or around June 2022 the offender was engaged by J Hutchinson Pty Ltd (Principal Contractor) to supply, install and maintain hoists for construction works at 33-39 Talavera Road, Macquarie Park NSW (the Site). The works comprised the “base build” of a data centre that, when completed, would be a five-storey structure with a height of approximately 45 metres.

8. Between September and November 2022 the offender supplied two motorised hoists for the purposes of transferring goods and personnel at the Site: a Model YHX020 YHX Hoist (Hoist 1) and a Model RX274 Raxtar Hoist (Hoist 2).

9. Each hoist was mounted on a trolley that could be raised and lowered along a mast when the hoist was energised. The design allowed the hoists to be powered by one of two means. The first was a “trailing cable” system, in which a flexible power cable follows the trolley as it moves along the hoist mast. The second was a “busbar” system comprising a beam of solid conductive metal that runs the height of the mast; once supplied with electricity, the energised busbar transfers power through to a current collector positioned atop the hoist trolley.

10. Hoists 1 and 2 were installed for use with the trailing cable method. Hoist 2 was connected to a three-phase 415-volt power supply.

11. The offender had a Site-specific safe work method statement (SWMS) labelled ‘Single/Twin Hoist Installation, Climbing & Servicing’ which identified procedural steps, hazards and controls addressing the risk of electrocution in connection with the installation and servicing of motorised hoists. The SWMS envisioned that all hoists installed by the offender at the Site would be powered using a trailing cable system. It addressed neither the installation of a busbar system nor the conversion of a power supply from a trailing cable to a busbar system.

Workers engaged at the Site

12. The offender had workers at the Site, including:

13. Mr Peterson, who had been employed by the offender for approximately five years as a maintenance fitter;

14. Mr Christopher Milner, a qualified electrician holding an electrical licence and NSW Qualified Supervisor Certificate; and

15. Mr Nathan Huddleston, a carpenter who possessed basic rigging qualifications and no electrical qualifications.

16. The Principal Contractor engaged a company called Stowe Electrical Australia Pty Ltd (Stowe) to supply electrical services at the Site.

Conversion of Hoist 1

14. In or about February 2023, the offender had Hoist 1 converted from a trailing cable system to a busbar system. Mr Peterson stated that the principal reason for the conversion was that a busbar system utilised fewer moving parts and was less prone to damage.

15. The offender did not conduct a risk assessment, update its SWMS or develop a fresh SWMS before converting Hoist 1’s power supply.

16. The offender’s workers had to operate the hoist in order to install the busbar alongside the height of the mast. As Hoist 1’s trailing cable system remained functional throughout the conversion, the hoist could be operated without the busbar being energised.

17. In this key respect, the conversion of Hoist 1 was undertaken in a manner which differed from the subsequent conversion of Hoist 2. This important difference was not identified by the offender in circumstances where no risk assessment or fresh SWMS was implemented for the conversion of either hoist.

Conversion of Hoist 2

18. On or about 19 April 2023 the offender learned of damage to Hoist 2’s trailing cable system. Stowe’s workers de-energised power to the hoist which was then lowered by one of the offender’s workers. A decision was made to convert it to be powered by a busbar, as had been done for Hoist 1.

19. On 20 April 2023, Mr Milner and Mr Huddleston began installing a busbar system to replace Hoist 2’s damaged trailing cable system. Mr Milner completed all electrical work in connection with the first few lengths of the busbar, which was to be installed in short sections, at ground level while Hoist 2 was de-energised.

20. Unlike with Hoist 1, Hoist 2 lacked a working trailing cable system enabling the hoist trolley to be driven upwards as each section of busbar was installed. All work requiring the installation of busbar pieces above ground level therefore required that the hoist be operated with the energised busbar as its source of power.

21. The busbar installed by the offender was not supplied with an insulated cap to cover the exposed electrical elements on top of each busbar section, leaving those elements capable of causing electrocution whenever the busbar was energised.

22. Mr Milner did not complete the installation of the busbar on 20 April 2023. As he commenced a period of pre-arranged leave the following day, he telephoned Mr Peterson and instructed him on how to complete the conversion process.

Incident

23. Mr Peterson attended the Site at approximately 7.00am on 21 April 2023 to carry on the conversion of Hoist 2’s power supply.

24. A toolbox talk attended by Mr Peterson took place prior to the commencement of the works. The material before the court does not reveal whether the risks of working in proximity to an energised busbar were addressed at the toolbox talk.

25. After conducting electrical testing at ground level, Mr Peterson instructed an electrician engaged by Stowe to re-energise the hoist.

26. Mr Peterson then took a position atop Hoist 2’s trolley known as the “crow’s nest”. Mr Huddleston, who did not hold an electrical trade qualification, stood at ground level near the isolator switch. Power to the hoist could be turned off by turning the handle of the isolator to an upwards position.

27. The method of work they adopted was as follows. While the hoist was de-energised, Mr Peterson set a segment of busbar against the hoist mast and bolted it into place. Mr Peterson then instructed Mr Huddleston to energise the hoist, enabling Mr Peterson to drive it up to the next increment of the mast using a remote control. Once the trolley reached the required level, Mr Peterson would call out for Mr Huddleston to de-energise the hoist. The process was repeated two-to-three times as Mr Peterson installed pieces of the busbar incrementally up the mast.

28. This method of installation created multiple instances where Mr Peterson worked, and in particular stood on moving machinery, near an exposed energised electrical circuit. It depended upon visual observation and verbal communication between Mr Peterson and Mr Huddleston to coordinate the isolation and energisation of the hoist. No lockout or tagging system was used to prevent the inadvertent energisation of the hoist by Mr Huddleston.

29. Having installed two-to-three segments of busbar, Mr Peterson again initiated the movement of the hoist to rise to the requisite height to install the next segment. When doing so he was standing, facing the hoist mast, with one foot positioned on a 125mm rail. As the hoist moved, Mr Peterson’s foot slipped off the rail. He instinctively reached out to steady himself with his left hand which came into contact with the energised busbar. He received an electric shock and was rendered unconscious.

30. Mr Huddleston was situated eight-to-ten metres below Mr Peterson. He was not directly observing Mr Peterson at the time of the incident. He was alerted to the incident by a sound and on looking up, observed Mr Peterson’s arm still in contact with the busbar. Mr Huddleston promptly isolated power to the hoist and called for assistance.

31. After the hoist was de-energised, Mr Peterson regained consciousness, broke contact with the busbar and was able to climb down from the crow’s nest into the hoist trolley. Mr Huddleston then climbed up to the crow’s nest and lowered the hoist to ground level.

32. Mr Peterson had not been issued with personal protective equipment (PPE) in the form of protective gloves, nor an insulated mat, to protect against the risk of electric shock.

Injuries

33. Mr Peterson suffered serious electrical burns and blisters to three fingers on his left hand. One finger required amputation. He was hospitalised for seven days and underwent skin debridement and grafting procedures. He did not return to work for approximately four months after the incident.

Post-incident review

34. The Principal Contractor conducted a post-incident review which identified the following as root causes of the incident:

35. Mr Peterson’s omission to grasp a handrail while Hoist 2 was in motion;

36. the live electrical elements that were exposed atop each section of the energised busbar; and

37. poor housekeeping atop Hoist 2, with cables strewn on the ground and Mr Peterson’s boots being caked with mud.

38. The Principal Contractor identified the following contributing factors:

39. Mr Peterson’s and Mr Huddleston’s absence of electrical licensing qualifications;

40. inadequate communication and electrical isolation procedures adopted by Mr Peterson and Mr Huddleston;

41. lack of detail in the offender’s SWMS concerning the procedure for installing the busbar; and

42. the absence of a lockout or tagging system for the isolation of power to the hoist.

Systems of work prior to the incident

36. It was an agreed fact that the offender had no documented procedure for the conversion of Hoist 2 from a trailing cable to a busbar system and that the offender did not review its systems of work before Mr Peterson and Mr Huddleston commenced work on the day of the incident. No specific instructions were provided by the offender concerning the isolation of electrical power. Nor was any risk assessment undertaken in respect of the installation of the busbar.

37. Before work commenced Mr Peterson reviewed an undated four-page document containing visual instructions for installing a busbar power system (Installation Guide). It is not clear in what context or by whom the Installation Guide was provided to him. The face of the document says it was prepared by Dongguan Great Man Electric Co. Ltd, a company which supplied neither of the two hoists at the Site nor the busbar installed on Hoist 2.

38. In any event, the Installation Guide had limited utility for managing risks arising from the installation of the busbar. It did not methodically identify hazards or risks arising in respect of each of the prescribed steps, nor did it identify control measures to minimise them. Further, the instructions were not Site-specific and were unable to be implemented by Mr Peterson. For example, the Installation Guide required that busbar installation be carried out by a licensed electrician and that insulated caps be applied to each busbar section as it was installed. However, Mr Peterson was not a licensed electrician and the offender had not provided him with insulated caps to cover the exposed electrical elements atop each busbar section.

39. The offender’s Site-specific SWMS set out the tasks, hazards and safety controls for each procedural step associated with installing and servicing hoists powered by a trailing cable system. It provided the following control measures designed to address the risks of electrocution and electric shocks and burns in relation to the connection of power to a hoist:

40. the work is to be completed by an electrician;

41. all personnel must be appropriately trained and issued with the correct PPE;

42. lockout and tagging procedures must be in place; and

43. an isolation permit must be completed prior to commencing work.

44. As previously mentioned, the SWMS did not deal with the installation of a busbar system. The agreed facts include a recollection of Mr Peterson that the offender updated its SWMS for the installation and servicing of hoists following the conversion of Hoist 1’s power supply. However, this recollection was not supported by documentary evidence and was not pressed at hearing.

45. Under the Principal Contractor’s Work Health Safety Management Plan, the offender was required to obtain permits before undertaking work on or near electrical installations or servicing plant. The offender required an isolation or lockout permit (which it did not obtain) to re-energise Hoist 2. It was also required to submit a Site-specific safety management plan to the Principal Contractor for approval before commencing work. It did not do so.

Guidance material

42. A substantial body of guidance material existed at the time of the incident.

43. The SafeWork NSW Code of Practice ‘Managing Electrical Risks in the Workplace’, published in August 2019, provided that:

44. “[e]lectrical work must not be carried out on electrical equipment while energised for the reason of it being merely more convenient for the electrical equipment to stay energised while the work is being carried out.”;

45. a risk assessment must be conducted by a competent person prior to the commencement of electrical work; and

46. the PCBU carrying out the electrical work is only authorised to do so after first consulting the person with management or control of the workplace.

47. Clause 154 of the Work Health and Safety Regulation 20**17 (NSW) (WHS Regulation) generally prohibits work being performed on energised electrical equipment, subject to exceptions which do not arise in the present case. Where work is undertaken on energised equipment, it must be performed by a competent person using appropriate tools and PPE, pursuant to a SWMS and in the presence of a suitably qualified safety observer.

48. Clause 163 of the WHS Regulation further required the installation of the busbar to be carried out in accordance with Australia/New Zealand Standard ‘Electrical installations – Construction and demolition sites’. Section 12 of the Standard required the installation and verification of supply systems to be carried out by a qualified person, being a person licensed to perform electrical installation work. Neither Mr Peterson nor Mr Huddleston held such a licence.

49. The installation of the busbar was electrical wiring work required to be completed by a qualified electrician in accordance with s 14 of the Home Building Act 1989 (NSW).

Steps taken after the incident

47. The offender now provides its workers with insulated caps to cover the exposed elements on top of each busbar section and plastic insulated “rain caps” to use as protective physical barriers when installing a busbar.

48. Mr Brodie Siope, a former senior manager of the offender who was engaged by it as a consultant at the time of the incident, gave further evidence in his affidavit about the post-incident steps taken by the offender.

49. Mr Siope deposed that after the incident, the offender:

50. arranged external accredited training in low voltage rescue and CPR for all workers in May 2023;

51. conducted competency-based training in June 2023 for its electricians on the safe handling, installation, dismantling and operation of a busbar system;

52. arranged in-house training for its electricians and Mr Peterson on the safe installation of a busbar system; and

53. consulted with its workers on each of these measures.

54. In addition, Mr Siope outlined the steps taken by the offender to update its Site-specific SWMS and existing procedures after the incident. He explained that he reviewed the offender’s SWMS in consultation with the busbar manufacturer, which he says produced the Installation Guide, and added detailed procedural steps and risk management controls specific to busbar installation. Those controls included that power isolation be controlled by a qualified electrician and that workers operating at different heights, or outside one another’s line of sight, communicate using two-way radios.

Consideration

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

52. I have taken into account the maximum penalty for this offence.

Objective seriousness

53. In assessing objective seriousness, I apply the principles set out by Paingakulam J in SafeWork NSW v Menai Civil Contractors Pty Ltd. [1]

54. An offence will necessarily be more serious in nature where it involves a risk to safety that was reasonably foreseeable. [2] The risk of electric shock to a worker engaged in the installation of a busbar system was not only foreseeable, but was in fact foreseen by the offender. The dangers associated with working on or near energised electrical equipment were expressly recognised by the offender in its Site-specific SWMS which existed at the time of the incident. Knowledge of the risk was also apparent from the system of work adopted, which required the busbar to be de-energised while Mr Peterson installed each successive section and then re-energised so the hoist could be operated.

55. The prosecutor did not contend that the offender’s use of the intermittently energised busbar as a power source was in itself a failure amounting to a breach of its health and safety duties. The hoist needed to be powered for the busbar to be installed. Given the damage to Hoist 2’s trailing cable system, it was accepted that no alternative power source was available to facilitate the hoist’s operation during the conversion work. The failure was in not ensuring that the risk was managed by using an insulated cap to prevent inadvertent contact with the exposed energised end of the busbar, along with appropriate PPE as a lower-level control measure.

56. The likelihood of the risk materialising was moderate-to-high. The system of work required Mr Peterson to work in close proximity to an intermittently energised busbar while standing on and operating moving machinery. Neither Mr Peterson nor Mr Huddleston was a qualified electrician. Further, the work being undertaken fell outside the offender’s ordinary procedures and was not governed by a SWMS. Despite these factors, the offender provided minimal guidance to either worker. The guidance that was provided, such as the Installation Guide, was insufficiently adapted to the conditions at the Site to effectively mitigate the pleaded risk.

57. The gravity of the potential consequences of the risk is apparent from the injuries sustained by Mr Peterson, who suffered electric shock and burn injuries and remained hospitalised for seven days undergoing three operations, including the amputation of one finger.

58. Equally significant is the fact that the risk could have been avoided by any of a number of straightforward and inexpensive measures, including undertaking a risk assessment, preparing a SWMS, ensuring a qualified electrician such as Mr Milner performed the work, fitting an insulated cap to the exposed busbar sections and using appropriate PPE.

59. The pleaded control measures were not costly, onerous or difficult to implement. Counsel for the offender succinctly captured the gravamen of the offence when he observed that: “all that perhaps needed to be done was to put the cap on” the busbar, being an insulated cap, although it was an agreed fact that no such cap was supplied with the busbar.

60. During the hearing the court was shown a photograph of the partially installed busbar fitted with a blue plastic cap. The cap appeared no larger nor more sophisticated in design than the lid of a household food storage container. It had been fitted between the incident and the prosecutor’s inspection of the Site later that day. As counsel for the offender properly conceded, this demonstrated that such a control measure was readily available to the offender.

61. The offender understood the importance of risk assessments and safe working procedures, as evidenced by its implementation of a Site-specific SWMS for the installation and servicing of hoists powered by a trailing cable system.

62. The gravamen of the offence was the offender’s failure to appreciate that converting Hoist 2’s method of power from a trailing cable to a busbar system constituted materially different work and required its own risk assessment and corresponding SWMS. That failure permitted a system of work that did not ensure the work was performed by a qualified electrician, left the exposed end of the busbar unprotected by an insulated cap and allowed the work to be performed without necessary PPE in the form of insulated gloves or an insulated mat.

63. Both parties submitted that the offence fell within the mid-range of objective seriousness. In light of the matters set out above, I am comfortably satisfied that assessment is correct.

Moral culpability

64. I accept the prosecutor’s submission that this was not a case of wholesale disregard for the offender’s obligations under the WHS Act. The offender had implemented a SWMS governing the installation and servicing of electrical hoists, albeit one that did not address the installation of a busbar system. It also had a practice of conducting toolbox talks before commencing work. These matters do not excuse the offending, but they are relevant to the offender’s subjective case. [3] I take them into account in determining the appropriate sentence.

Deterrence

65. Both general and specific deterrence are important sentencing considerations in cases involving serious contraventions of the WHS Act. [4]

66. General deterrence must be given particular weight in light of strong community expectations and the public interest in ensuring compliance with workplace safety laws. [5] The serious risks to workers who perform electrical work should be obvious to any PCBU. Courts have repeatedly emphasised the importance of ensuring that electrical work, being inherently high-risk, is performed by suitably qualified persons and in accordance with appropriate safety systems. [6]

67. As for specific deterrence, the evidence is that a decision was made in 2023 for the offender to cease accepting new contracts. Its operations have now wound down to the point where it has no employees and does no work. Ms Ofelia Tan, the sole director and secretary of the offender, deposed in her affidavit that the offender “remains active for the purpose of meeting outstanding tax obligations and their duty to the Court to resolve these proceedings”.

68. There is evidence that the offender has related entities that are still in the business of supplying and installing hoists. The court was told by the offender’s counsel that the offender’s business was purchased in 2021 by Fowler Sales & Hire (Fowler), a business which performs similar work to the offender, albeit not in the Tier 1 construction industry. The connections between the two entities include:

69. Mr Siope—who was employed by the offender in senior operational management roles between 2018 and 2021, and was engaged as a consultant between September 2021 and June 2024—is currently the general manager of Fowler;

70. Ms Tan, who became the sole director and secretary of the offender on 8 August 2023, is the financial controller of Fowler; and

71. Mr Brian Ferguson, Fowler’s operations manager, provided “in-house training” to the offender’s employees following the incident using a presentation document labelled “Fowler Hoist” to train them on the installation of busbar and hoist systems.

72. Those circumstances give rise to the question: is specific deterrence a relevant sentencing consideration where the offender no longer engages in construction work, but such work continues to be undertaken by another entity within the same corporate group?

73. Counsel for the prosecutor relied on the observation of Basten JA in Nash v Silver City Drilling (NSW) Pty Ltd that post-incident changes in management and safety culture may diminish the need for specific deterrence:

“Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers.” [7]

71. It was submitted that the corollary of that proposition is also true: where the directors of a company continue the same work activities through a related entity, there may remain a role for specific deterrence notwithstanding that the offender has ceased carrying on business.

72. Counsel for the offender rejected that proposition, contending that specific deterrence falls to be assessed by reference only to the entity charged with the relevant offence. The activities of related entities, even if they perform the same work, are irrelevant.

73. It is correct to say that specific deterrence ordinarily carries little, if any, weight where a corporate offender has ceased operating in the relevant industry. The fact that other entities continue to perform that work does not render specific deterrence a material sentencing consideration, even if one or more of them share a common director or shareholder. Such circumstances do, however, tend to reinforce the importance of general deterrence.

74. Notwithstanding this, it is possible to conceive of cases in which specific deterrence retains some relevance despite the apparent cessation of the offender’s operations. That may occur where two or more entities, under common ownership or control, are managed and function as a single enterprise. In such a case, the transfer of activities from one group entity to another following a safety incident may well justify regard to specific deterrence.

75. Apart from an admission from the bar table by the offender’s counsel that Fowler acquired the offender in 2021, there is no evidence concerning the precise relationship between the two entities, including whether they are related entities as a matter of law.

76. Nor is there evidence as to the nature and extent of Fowler’s operations. Beyond submissions that it hires equipment and performs hoist installation work, the court has no evidentiary basis upon which to determine whether Fowler carries on substantially the same business as the offender. The fact that certain individuals may have worked for, or held office in, both entities is insufficient to establish that they operated as a single enterprise. Accordingly, I am not satisfied that this is a case in which specific deterrence ought to be taken into account in setting the appropriate fine.

Aggravating factors

77. It is an aggravating factor if the injury, emotional harm, loss or damage caused by the offence was substantial within the meaning of s 21A(2)(g) of the Sentencing Act.

78. Mr Peterson suffered actual serious injury in the form of electric shock and electrical burns and blisters to his hands and fingers. Medical and hospital admission records annexed to Mr Siope’s affidavit show that Mr Peterson was burnt so extensively on one finger that the bone became exposed. He remained hospitalised for seven days and underwent three procedures, including debridement of burnt skin and a skin graft from his thigh to the fingers of his left hand. The final operation was to amputate his ring finger.

79. I am satisfied that the injury, emotional harm, loss or damage caused by the offence was substantial within the meaning of s 21A(2)(g) of the Sentencing Act.

Mitigating factors

80. I take into account the following mitigating factors.

81. The offender has no prior convictions under the WHS Act. [8]

82. The company is otherwise of good character and has a history of positive contributions to the community, including arranging and participating in charity events and sponsoring local sports teams. [9]

83. The evidence given by Ms Tan and Mr Siope indicates that the offender updated its safety management systems after the incident and will cease operating at the conclusion of the proceedings. The offender is therefore unlikely to re-offend. [10]

84. Ms Tan and Mr Siope both expressed remorse and contrition on behalf of the offender. They acknowledged the offender’s responsibility for the incident and apologised for the harm it had caused. By this evidence, the offender has accepted responsibility for its conduct and acknowledged the injury caused by the offence. [11]

85. The offender submitted that it was entitled to a reduction in its sentence pursuant to s 22A of the Sentencing Act by reason of its compliance with notices issued by the prosecutor and its cooperation with the prosecutor’s solicitors in preparing the matter for hearing. As Paingakulam J observed in SafeWork NSW v Hibernian Contracting Pty Ltd, the provision of assistance in response to a regulatory notice may vary in completeness and reliability. [12] “Bare compliance” with mandatory statutory notices, such as the ones issued to the offender, is not ordinarily regarded as a mitigating circumstance. [13] In the present case there is no evidence concerning the nature or extent of the offender’s cooperation with the prosecutor, including any response to regulatory notices. I am therefore unable to conclude that the offender provided assistance to the prosecutor beyond that which was required by law.

Discount in light of the early plea of guilty

86. The prosecutor accepted that the offender is entitled to a discount on sentence for its plea of guilty. The plea was entered at the fifth mention, approximately 10 months after the commencement of proceedings. As it was not entered at the earliest opportunity, there is a proper basis for the court to exercise its discretion to set a discount of less than 25%.

87. At hearing, counsel for the offender informed the court that the offender transferred the matter to new solicitors after the second mention and, by October 2025, had indicated a willingness to plead guilty subject to agreement being reached on certain matters including amendments to the particulars. Having regard to those circumstances, I am prepared to apply the maximum discount of 25% to reflect the early plea, which had considerable utilitarian value even though it was not entered at the very earliest opportunity. [14]

Capacity to pay a fine

88. In accordance with s 6 of the Fines Act 1996 (NSW), the court must have regard to the means of the offender before imposing a fine.

89. Capacity to pay is relevant but not determinative with respect to the value of the ultimate fine imposed; regard must also be had to other sentencing factors. [15]

90. The offender contended that it had a diminished capacity to pay a substantial fine. It relied upon financial and tax records for the 2023, 2024 and 2025 financial years annexed to Ms Tan’s affidavit which showed:

91. In respect of the 2022/2023 financial year: revenue of $7,129,384; gross profit of $3,445,948; intercompany and intergroup expenses of $728,447; management and consulting expenses of $816,639; other expenses of $1,855,558; taxable profit of $45,304; and a negative net asset position of $13,002.

92. In respect of the 2023/2024 financial year: revenue of $4,541,864; gross profit of $1,793,557; intercompany and intergroup expenses of $624,149; management and consulting expenses of $705,973; other expenses of $1,685,169; taxable loss of $1,221,199; and a negative net asset position of $1,234,201.

93. In respect of the 2024/2025 financial year: revenue of $1,313,761; gross profit of $542,567; intercompany and intergroup expenses of $56,037; management and consulting fees of $2,082; other expenses of $530,202; taxable loss of $44,824; and a negative net asset position of $1,279,025.

94. The material falls short of establishing a reduced capacity to pay. The accounts disclose substantial transactions with related entities yet provide insufficient detail to enable the court to determine the nature or extent of those arrangements. Nor do they permit any in-depth assessment of whether amounts recorded as owing to, or by, related entities represent genuine liabilities or sources of available funds. Importantly, there is also no evidence of the offender’s capacity to obtain financial assistance from its shareholders or related entities.

95. The accounts include a resolution made on 5 May 2026 by Ms Tan, the offender’s sole director who is also the financial controller of Fowler, that “there are reasonable grounds to believe that [the offender] will be able to pay its debts as and when they become due and payable”.

96. As noted earlier, the court was told that the offender was acquired by Fowler in or around 2021 and Mr Siope, the offender’s former general manager, is now the general manager of Fowler.

97. The offender elected not to put before the court evidence concerning the nature of its relationship with Fowler. I draw no adverse inference from that omission. However, the absence of such evidence leaves the court unable to assess key matters such as the offender’s ability to borrow funds, obtain financial support or otherwise access resources beyond those disclosed in its financial statements. As a result, I cannot form any concluded view about the offender’s capacity to pay a fine and cannot be satisfied that the offender has met the onus of proof which it bears on this issue. [16]

98. Even if I had been satisfied that the offender’s capacity to pay was materially constrained, I would not have reduced the fine on that account for two reasons.

99. First, the evidence indicates that the offender made a deliberate, albeit unexplained, decision to reduce its business activities following the incident which has contributed to its present state. Mr Siope gave evidence that he was involved in the restructuring and reduction of the offender’s operations, but no further evidence was adduced about the reasons for those decisions. Counsel for the offender submitted that the reduction in the company’s business activities was caused by a decision made 10-12 months before the incident to cease working in the Tier 1 construction industry. I make no suggestion that the reduction in the offender’s business activities is related to the incident, merely that any apparent reduction in capacity to pay arises, at least in part, from a commercial decision taken by the offender itself.

100. Second, given that the offender no longer performs work and has no employees or contractors who might be affected, there is no good reason as a matter of discretion to reduce the fine. Given the circumstances, even if a significant fine led the company to be liquidated or placed into receivership, that would not lead to the loss of jobs nor cause harm to customers or other third parties.

101. In determining the quantum of the fine I have had regard to the size of the offender’s business. While it is not a large enterprise, I reject the offender’s submission that it should be characterised as a small business, noting that it had revenue in the 2023 financial year of $7,129,384 and gross profit of $3,445,948 before the deduction of expenses such as consultancy fees, management fees and intercompany and intergroup charges. The subsequent decline in the offender’s income in subsequent financial years appears largely attributable to its decision to cease entering into new contracts.

Payment of the prosecutor’s costs

99. The offender agreed it ought to be ordered to pay the prosecutor’s costs in the sum of $37,500.

100. The offender submitted that the court should take into account its liability to pay the prosecutor’s costs when determining the appropriate penalty. It placed reliance upon the NSW Court of Criminal Appeal’s judgment in Environment Protection Authority v Barnes (“Barnes”) as authority for the proposition that an order for costs is an “important aspect of the punishment of” the offender. [17]

101. That submission should not be accepted. In Barnes, the issue arose in the context of the offender’s limited capacity to pay. [18] Absent a finding that an offender’s financial circumstances warrant mitigation of an otherwise appropriate fine, there is no basis to reduce the penalty by reason of an anticipated costs order. To do so would undermine the elemental principle that a penalty must be proportionate to the objective seriousness of the offence. It would also have the practical effect of treating a costs order as a form of punishment, when it is not. [19]

102. The offender’s submission presents particular difficulties in the context of proceedings for offences under the WHS Act, where offenders are routinely ordered to pay the prosecutor’s costs. If every such order justified a reduction in penalty, fines for breaches of the WHS Act would systematically fail to reflect the seriousness of the offending conduct.

Penalty

103. The appropriate fine is $480,000, reduced by 25% to $360,000 to reflect the plea of guilty.

ORDERS

104. I make the following orders:

105. I convict Solution Hoist Hire Pty Ltd of the offence as charged.

106. I impose a fine of $360,000.

107. Solution Hoist Hire Pty Ltd is to pay SafeWork NSW’s costs in the sum of $37,500.

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

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Endnotes

[2025] NSWIC 8 at [40]–[45].

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [82].

WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [74].

R v Irvine (2009) 25 VR 75; [2009] VSCA 239 at [52] (Neave JA, with whom Nettle JA and Lasry AJA agreed).

Director of Public Prosecutions (Vic) v Nordic Elevators Pty Ltd [2025] VSC 379 at [20]; SafeWork NSW v Ultra Refrigeration Pty Ltd [2021] NSWDC 149 at [62]–[64]; Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27 at [129]–[132]; WorkCover Authority of New South Wales (Inspector Reynolds) v PF Thearle & Co Pty Limited [2001] NSWIRComm 105 at [23].

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [59] (Basten JA, with whom Hoeben CJ at CL and Walton J agreed).

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(e).

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(f).

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(g).

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i).

[2025] NSWIC 4 at [89].

SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4 at [89].

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22.

Jahandideh v The Queen [2014] NSWCCA 178 at [16] (Rothman J, with whom Hoeben CJ at CL and Beech-Jones J agreed).

McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24].

[2006] NSWCCA 246 at [78] (Kirby J, with whom Mason P and Hoeben J agreed).

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd (No 2) (2023) 255 LGERA 24; [2023] NSWLEC 3 at [193].

Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ), 565 (Toohey J) and 569-70 (McHugh J); [1990] HCA 59; Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338; [2017] NSWCCA 96 at [68] (Basten JA, with whom Hoeben CJ at CL and Walton J agreed); SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 at [37] (Wilson J, with whom Beech-Jones CJ at CL and Hulme J agreed).