The recently reconstituted Industrial Court of New South Wales has delivered its first sentencing decision in a work health and safety (WHS) prosecution, with Justice Paingakulam handing down judgment in SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4.

For those familiar with the sentencing approach historically adopted by the District Court in WHS matters, much of the structure of the judgment and application of principles will be familiar, for example the non-delegable duties when engaging contractors. That said, the decision offers useful clarification regarding the treatment of post-incident conduct in mitigation.

Background

The proceedings arose from a 2022 incident at a Camden Council works depot, where a labourer sustained serious injuries following an explosion. The worker had used a grinder on a pipe attached to a waste oil tank, which ignited residual oil vapours.

Hibernian Contracting Pty Ltd pleaded guilty to a Category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act). He suffered significant burns requiring two skin grafts.

The judgment

The structure of the judgment will be familiar to those familiar with judgements from the District Court. The Industrial Court assessed objective seriousness by reference to foreseeability, the availability of reasonably practicable control measures, and relevant guidance materials, including codes of practice and the Australian Standards. That approach is consistent with the WHS sentencing decisions of the District Court.

Helpfully, the judgment gives particular attention to the role of sentencing legislation, particularly section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 23 permits a sentencing court to impose a lesser penalty where the offender has provided assistance to law enforcement authorities.

While cooperation with regulators is commonly advanced in mitigation, it is less frequently the subject of detailed judicial analysis in WHS decisions. In this case, Justice Paingakulam engaged directly with the operation of section 23(1), and whether Hibernian’s post-incident conduct amounted to “assistance to law enforcement authorities” for the purpose of section 23.

At [89] of the judgment, Her Honour identified several factors relevant to the assessment of such assistance in a WHS context, being:

1. Assistance provided in response to a regulatory notice may vary in completeness and reliability. If information is false or misleading, that may attract criminal sanction.
2. Bare compliance with a regulatory notice, particularly where non-compliance would itself be an offence, is not ordinarily a mitigating factor.
3. Proactive engagement with a regulatory process is not viewed as favourably as wholly voluntary cooperation. It may, however, be distinguished from assistance that is merely incidental or unwitting.
4. The time, effort and cost involved in responding to multiple regulatory demands (particularly where directed to a corporate entity and its officers) are relevant considerations.
5. The ease with which remedial steps are implemented in response to an improvement notice may assist the prosecution in demonstrating that such measures were reasonably practicable.
6. Prompt compliance can also benefit the prosecution, particularly in light of statutory limitation periods under the WHS Act.

Key Takeaway

Whilst this is the first judgement to come out of the Industrial Court, Her Honour’s analysis provides valuable guidance for regulators and duty holders alike, clarifying when post-incident cooperation will be treated as a mitigating factor capable of justifying a reduced penalty, and distinguishing it from mere compliance with statutory obligations.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.