Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Saunders Civilbuild Pty Ltd v SafeWork New South Wales (No 2) [2024] NSWCCA 3 Hearing dates: On the papers Date of orders: 12 February 2024 Decision date: 12 February 2024 Before: Walton J at [1] McNaughton J at [2] Decision: (1) Except as set out in order 2 below, the appellant's appeal against sentence is dismissed and the orders made by Scotting DCJ on 18 May 2022, are confirmed, including the order made pursuant to s 122(2) of the Fines Act 1996 (NSW), that 50% of the fine is to be paid to the respondent; (2) Quash the Adverse Publicity Order made by Scotting DCJ on 18 May 2022, and substitute an Adverse Publicity Order to the following effect: (a) The appellant must publish the amended Adverse Publicity Notice by causing the amended Notice to be published on or before 28 February 2024, or in the first editions published after that date, in two consecutive editions of each of: (i) The Master Builders Association Magazine; and (ii) The Civil Contractors Federation Bulletin; (b) The amended Notice to be published by the appellant must: (i) Be of a size no less than a full page in the Magazine or at least 28cm x 5 columns in size; (ii) Use a minimum type size of 12 point Times New Roman or equivalent; and (iii) Be in full colour; (c) The appellant is to advise the respondent no later than 5:00pm on 28 February 2024, with evidence that this Adverse Publicity Order has been complied with. Catchwords: CRIME – appeals – appeal against sentence –whether an Adverse Publicity Order should be substituted with a form of order reflecting the findings subsequent to a conviction appeal – Adverse Publicity Order quashed and substituted Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6AA Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 32, 236 Cases Cited: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163 Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 Texts Cited: Nil Category: Principal judgment Parties: Saunders Civilbuild Pty Ltd (Appellant) SafeWork New South Wales (Respondent) Representation: Counsel: M Cunneen SC with P Barry (Appellant) J Agius SC with M Cahill (Respondent) Solicitors: Moray & Agnew Lawyers (Appellant) SafeWork NSW (Respondent) File Number(s): 2020/32219 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2022] NSWDC 163 Date of Decision: 18 May 2022 Before: Scotting DCJ File Number(s): 2020/32219 HEADNOTE [This headnote is not to be read as part of the judgment] On 10 November 2021, Saunders Civilbuild Pty Ltd ("the appellant") was convicted of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"); that is, a failure to comply with a health and safety duty, which exposed individuals to a risk of death or serious injury or illness. Pursuant to s 236(1) of the WHS Act, the primary judge, Scotting DCJ, made an Adverse Publicity Order against the appellant, requiring the publication of an Adverse Publicity Notice that was to comprise the offence, its consequences, the penalty imposed and any other related matter. On 18 October 2023, the Court of Criminal Appeal unanimously dismissed an appeal against conviction. In so doing, the Court found that the primary judge erred in finding that sub-particulars 17(a)(iii) and (iv) ("the Fall Protection Findings") were reasonably practicable measures when regard was had to the circumstances of the incident. Accordingly, in its orders, the Court held that the parties could seek directions in relation to any proposed appeal against sentence. The only issue in the appeal against sentence was whether the Adverse Publicity Order providing for the publication of the Adverse Publicity Notice in its existing form should be quashed and substituted with a new form of order that incorporates the findings in the appeal against conviction. The Court held, allowing the appeal: The Adverse Publicity Notice is to reflect the offence so far as it was proven. As the challenge to the Fall Protection Findings in the appeal against conviction was successful, the Adverse Publicity Order formulated by the primary judge should be quashed. In its place, a form of order that reflects the proven offences should be made. JUDGMENT 1. WALTON J: I agree with McNaughton J. 2. MCNAUGHTON J: Saunders Civilbuild Pty Ltd ("the appellant") was convicted by Scotting DCJ in the District Court of New South Wales on 10 November 2021, for an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"), [1] and was sentenced on 18 May 2022. [2] 3. On 18 October 2023, this Court (comprising Beech-Jones CJ at CL (as his Honour then was), Walton J and myself) dismissed an appeal against conviction. [3] 4. The Notice of Appeal filed by the appellant had incorporated an appeal against sentence, but that matter was not pursued at the time of the conviction appeal. In the course of its reasons rejecting the conviction appeal, the Court gave the appellant liberty to apply with respect to the sentence appeal. By correspondence dated 8 November 2023, the appellant's solicitors indicated that the appellant would proceed with the sentence appeal but confined the appeal to one aspect of the sentencing orders. The parties proposed directions for the sentence appeal and indicated they were content to have the appeal heard on the papers. 5. On 16 November 2023, due to the retirement of Beech-Jones CJ at CL (as he then was) from this Court, Bell CJ directed, pursuant to s 6AA(1) of the Criminal Appeal Act 1912 (NSW), that the appeal against sentence, including any application for leave to appeal, be heard and delivered by Walton J and myself. 6. Directions were made by Walton J, and submissions from both parties were filed and served in accordance with the directions. The matter has been determined on the papers. The sentence 1. At [126]-[133] of his Honour's sentencing decision, Scotting DCJ made the following orders: 1. The appellant is convicted; 2. A fine of $375,000.00 is imposed; 3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the respondent; [4] 4. Pursuant to s 236 of the WHS Act, the appellant must publish the Notice ("the Adverse Publicity Notice") set out in Annexure A to the sentencing judgment by causing it to be published (with certain specifications) by a specified date in two consecutive editions of each of The Master Builders Association Magazine and The Civil Contractors Federation Bulletin ("the Adverse Publicity Order"); 5. The appellant is to notify the respondent by a certain date, with evidence, that the Adverse Publicity Order has been complied with; and 6. The appellant is to pay the respondent's costs of the proceeding. The appeal against sentence 1. The appeal against sentence is confined to a challenge to the Adverse Publicity Order made by Scotting DCJ, pursuant to s 236 of the WHS Act, arising from the only successful challenge by the appellant in Ground 1 of the conviction appeal, namely a challenge to findings against the appellant based on sub-particulars 17(a)(iii) and (iv) of the Summons commencing the prosecution ("the Fall Protection Findings"). No challenge is brought as to the fine imposed by the sentencing judge. 2. In essence, the sentence appeal seeks a quashing of the Adverse Publicity Order, to be substituted with a form of order which reflects the findings as they now stand following the appeal against conviction; in other words, that the Fall Protection Findings should no longer be included in the Adverse Publicity Notice ordered pursuant to the Adverse Publicity Order. 3. The respondent does not oppose the orders sought by the appellant. Consideration 1. The Adverse Publicity Order was made pursuant to s 236(1) of the WHS Act, on the application of the respondent. 2. Sub-sections 236 (1) and (2) of the WHS Act read: (1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender— (a) to take either or both of the following actions within the period specified in the order— (i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter, (ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter, and (b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. 1. It is clear from the legislation that the Adverse Publicity Notice is to reflect the "offence". Clearly, that means the offence so far as it was proven. 2. As Scotting DCJ stated in the course of his Honour's sentencing judgment, at [122]-[123]: "I am satisfied that the adverse publicity order is warranted in this case for the following reasons. First, the objects of the Act include protecting workers through the elimination or minimisation of risks arising from work from specified types of substances or plant and securing compliance with the Act through effective and appropriate compliance and enforcement measures. One way of promoting those objects is to publicise the existence of a risk in a particular activity, how risks can be eliminated and how the enforcement measures in the Act are applied to deal with a non-compliant PCBU. Second, the purposes of sentencing include deterrence and denunciation of the conduct of the offender. General deterrence cannot be achieved without some publication of the sentencing outcomes for similar offences. The proposed adverse publicity order is specifically targeted at a class of persons who are in a position to commit similar offences. Further, the adverse publicity order will denounce the conduct of the offender. This is important in the ordinary way and also to indicate that in a strict liability offence even a comprehensive system needs to be reviewed to ensure that important safety measures are comprehensively implemented." 1. Given the successful challenge by the appellant to the Fall Protection Findings in the conviction appeal, it is obvious that his Honour's order providing for the publication of the Adverse Publicity Notice in its existing form should be quashed. It should be substituted with a form of order which incorporates an amended Adverse Publicity Notice (annexed to this judgment as Annexure A) reflecting the findings as they now stand following the appeal against conviction. ORDERS 1. On the appeal against sentence, I propose the Court makes the following orders: 1. Except as set out in order 2 below, the appellant's appeal against sentence is dismissed and the orders made by Scotting DCJ on 18 May 2022, are confirmed, including the order made pursuant to s 122(2) of the Fines Act 1996 (NSW), that 50% of the fine is to be paid to the respondent; 2. Quash the Adverse Publicity Order made by Scotting DCJ on 18 May 2022, and substitute an Adverse Publicity Order to the following effect: 1. The appellant must publish the amended Adverse Publicity Notice by causing the amended Notice to be published on or before 28 February 2024, or in the first editions published after that date, in two consecutive editions of each of: 1. The Master Builders Association Magazine; and 2. The Civil Contractors Federation Bulletin; 1. The amended Notice to be published by the appellant must: 1. Be of a size no less than a full page in the Magazine or at least 28cm x 5 columns in size; 2. Use a minimum type size of 12 point Times New Roman or equivalent; and 3. Be in full colour; 1. The appellant is to advise the respondent no later than 5:00pm on 28 February 2024, with evidence that this Adverse Publicity Order has been complied with. Annexure A (19691, docx) ********** Endnotes 1. SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605. 2. SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163. 3. Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261. 4. This order was added on 19 May 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2024