HSWA sentencing and the Stumpmaster bands

The HSWA creates three tiers of offending against a health and safety duty. Section 47 — reckless conduct exposing a person to risk of death or serious injury — carries maxima of $3 million for a body corporate and, for individual PCBUs and officers, up to $600,000 and/or five years' imprisonment. Section 48 — exposing a person to such a risk without recklessness — carries up to $1.5 million for a body corporate. Section 49 — a duty failure without risk exposure — carries up to $500,000.

Most prosecutions are brought under s48. The tier matters not just for the maximum but for what else is available: an enforceable undertaking, for example, is not available for s47 offending.

In Stumpmaster the High Court settled the methodology: first, assess the reparation payable to victims; second, fix a starting-point fine by reference to the culpability bands; third, adjust the fine up or down for aggravating and mitigating factors specific to the offender; and fourth, step back and assess the proportionality of the total outcome — including ancillary orders and the offender's financial capacity.

The sequence matters. Reparation comes first and is not a discount off the fine; the fine is assessed on culpability, not harm alone; and the final proportionality check is where capacity-to-pay arguments are properly made — not as a reason to start low.

For s48 offending, Stumpmaster set four bands for the starting-point fine: low culpability up to $250,000; medium culpability $250,000 to $600,000; high culpability $600,000 to $1 million; and very high culpability $1 million and above.

Culpability is assessed on the familiar factors: how obvious the hazard was, how cheap and available the remedy was, whether industry guidance existed and was ignored, the degree of departure from standards, and whether the risk was run for commercial gain. Most contested sentencing argument is about which band the offending sits in and where within it.

Reparation compensates the victim or their family for emotional harm and for consequential losses not covered by ACC — including top-ups for lost earnings. In fatal cases, emotional-harm reparation awards commonly sit in the range of six figures, and consequential loss can add substantially to that.

Reparation is assessed first and paid ahead of the fine. For a defendant, engaging early — offering amends, contributing to costs, supporting the family — is both the right thing and a matter the court expressly weighs.

From the starting point, the familiar discounts apply: up to 25% for an early guilty plea, plus meaningful credit for cooperation with the investigation, remedial steps taken since the incident, reparation already paid, prior good safety record, and remorse. Stacked, the discounts routinely halve the starting-point fine.

Financial capacity is addressed at the final step — the court can reduce a fine a business genuinely cannot pay, but expects proper financial evidence, and will not let a healthy company plead poverty. Ancillary orders (training orders, project orders, publication) can also form part of the package.

The framework makes exposure calculable — band, adjustments, discounts — which is exactly what a duty-holder needs to weigh the options: defend, plead early, or pursue an enforceable undertaking. The calculus changes with the strength of the Crown's case on each culpability factor.

This is where the chambers' both-sides regulatory experience earns its keep: reading the investigation file the way the regulator does, testing which culpability factors are actually made out, and running the sentencing argument — or the EU proposal — from a defensible base.