In November 2018, the defendant pleaded guilty to an offence against section 32 of the Work Health and Safety Act 2011 (‘Act’) for failing to comply with its duty held under section 19(1) of the Act and was sentenced in the Cairns Magistrates Court. The offending related a to a fatality on a Kanimbla construction site in 2016. The defendant was convicted and fined $250,000 with no conviction recorded.

The defendant appealed to the District Court against the severity of the sentence. On 18 September 2020, in the District Court at Cairns, by Judge Morzone QC dismissed the defendant’s appeal.

The defendant conducted a business involving housing construction work in the Far North Queensland region. In March and April 2016, the defendant was constructing a two-storey residence in Kanimbla and engaged a painting contractor to conduct painting work within the house. The painting contractor engaged a worker to assist with the work. The defendant had regularly engaged a painting contractor in the 12 months prior to April 2016.

As part of the construction of an internal staircase, a large void existed between the first level and ground level of the residence at a height of approximately 3.2m. The void was walled on three sides with the open side adjacent to a corridor. On 29 March 2016, the defendant’s site supervisor and the painting contractor discussed implementing fall protection for the void before painting commenced. They then positioned a modified timber pallet against the vertical face of the void to act as a barrier (‘pallet barrier’). It was fixed in place or held upright, supported by several buckets which were filled with rubble or water. A thick piece of pine was attached to the pallet barrier and extended beyond the pallet as uneven cantilevers at either end.

The defendant’s site supervisor handed over the interior of the house to the painting contractor for spray painting. The site supervisor left the painting contractor with responsibility as to the method of painting the void. On 1 April 2016, the painting contractor advised his worker not to paint the void until a scaffold was erected, which was organised for 4 April 2016. The pallet barrier was still positioned across the open vertical face of the void. After the site supervisor left the residence, the pallet barrier was removed and placed against a door frame opposite the void area. Later that day, the worker fell through the void and sustained fatal injuries.

At first instance, Magistrate Browne accepted the incident was preventable, for which reason builders have legislated onerous duties for these types of constructions, with significant penalties for a failure to comply with those duties. His Honour also observed the tragedy of the situation and the enormous impact on the family, having regard to the victim impact statements of the deceased’s brother and daughter.

In sentencing, his Honour held deterrence was a relevant consideration, and that others needed to be deterred from ignoring or relaxing their responsibilities at workplaces. His Honour commented that those responsibilities must never be relaxed, as workers should expect their workplaces are safe, and their safety is paramount over expediency or cost constraints.

Magistrate Browne determined that an aggravating factor was the company’s original safety plan which contributed to the incident. That plan was generic and did not specifically relate to the construction undertaken or describe how to implement control measures. His Honour noted that there was another void in the residence that was also inadequately protected.

In mitigation, his Honour took into account the defendant’s timely guilty plea and remorse, shown by cooperation and the post-incident measures implemented. Those measures included proper worksite induction, pre-start checklists, a new construction safety plan and new properly constructed scaffolding. His Honour also accepted that spot checks and proper site supervision indicated that the company had adopted best practices. His Honour had regard to positive references provided in relation to the company and its directors, its lack of previous convictions, and its capacity to pay given the evidence of its modest profits.

When considering the penalty to be imposed, his Honour had regard to comparable cases and the sentencing considerations contained in section 9(2) of the Penalties and Sentences Act 1992 (‘PSA’), including, in particular, deterrence and denunciation. His Honour convicted and fined the defendant $250,000.

His Honour declined to record a conviction taking into consideration the defendant’s timely guilty plea, remorse and potential negative impact on the company.

The defendant appealed to the District Court on two grounds. First, the defendant contended that its plea of guilty was defective, thereby nullifying the proceedings in that the complaint was not stated to the officers of the defendant when the plea was entered. Second, the defendant argued that the sentence was manifestly excessive.

In respect of the first ground, his Honour determined that non-compliance with the procedure under the Justices Act 1886 was an irregularity which did not impact the proceedings or cause injustice as the defendant’s officers acquiesced in the procedure adopted, with no resultant injustice.

In respect of the second ground, his Honour rejected the submission that the sentencing Magistrate’s guidance from comparative cases under the nationally harmonised workplace health and safety legislation distracted or overwhelmed his considerations of the principles contained in the PSA.

His Honour also rejected the submission that the sentencing Magistrate failed to take into account the statutory considerations of imposing a fine as required by section 48 of the PSA. Judge Morzone QC held that the sentencing Magistrate did not allow irrelevant considerations to guide his decision to refer the fine to SPER.

His Honour had regard to the comparative cases and held that the sentence imposed was not manifestly excessive.

The defendant’s appeal was dismissed.

A copy of the decision is available at www.sclqld.org.au/caselaw/QDC/2020/235.

OWHSP contact: enquiries@owhsp.qld.gov.au