Company fined $300,000 for unsafe work practices during roof repairs

A company was convicted and fined $300,000 for failing to comply with work health and safety duties, resulting in a worker falling through the roof. The court considered the company's early guilty plea and its capacity to pay the fine.

OUTCOME: Other

District Court New South Wales

Medium Neutral Citation: [NAME_1] v [COMPANY_4] [2023] NSWDC 467 Hearing dates: 30 October 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) [COMPANY_4] is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order [COMPANY_4] to pay a fine of $300,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 ([NAME_2]) that 50% of the fine is to be paid to the prosecutor. (5) Order [COMPANY_4] to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall from heights – roof sheet not secured by screws – worker fell through roof – failure to undertake adequate site-specific risk assessment – failure to develop, implement and enforce adequate Safe Work Method Statement – failure to provide information, training and instruction Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ([NAME_2]), ss 3A, 21A, 22 Fines Act 1996 ([NAME_2]), ss 6, 122 Work Health and Safety Act 2011 ([NAME_2]), ss 3, 14, 19, 32 Work Health and Safety Regulation 2017 ([NAME_2]), cll 78, 79 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [NAME_7] v [NAME_8] ([NAME_2]) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v [NAME_9] (No. 5) [2009] NSWSC 432 [NAME_1] v [COMPANY_6] [2023] NSWDC 75 Unity Pty Limited v [NAME_1] [2018] NSWCCA 266 [NAME_10] v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian/New Zealand Standard, "Industrial fall-arrest systems and devices" 2009 [NAME_1] of Practice, "Managing the risk of falls at workplaces" August 2019 [NAME_1], "Safe Work on Roofs" January 2016 [NAME_1] Findings, "Construction blitz on falls from heights" November 2018 [NAME_1] Findings Report, "Falls from heights in construction – blitz 2.0" 1-30 October 2019 [NAME_1] Notice, "Falls through roofs" 4 August 2020 Category: Sentence Parties: [NAME_1] (Prosecutor) [COMPANY_4] (Defendant) Representation: Counsel: [redacted] [NAME_13] (Defendant)

Solicitors: [redacted] [NAME_15] (Defendant) File Number(s): 2022/346637

Judgment 1. This is yet another case of a fall in the roofing industry. Previous judgments have lamented the prevalence of such events, which invariably lead to serious injuries: see [NAME_1] v [COMPANY_6] [2023] NSWDC 75 at [1] and [104]. This case is a particular illustration of the principle that safety can only be ensured when all parties on a roofing site carry out their duties under the Work Health and Safety Act 2011 ([NAME_2]) (the Act). Such duties cannot be delegated and it is only when every business or undertaking on the site takes care that risks can be eliminated. As the roofing cases demonstrate, one mistake in an inherently dangerous industry is one too many.

2. On 19 November 2020 workers were carrying out roof rectification works at a site in Moorebank. A worker, [NAME_16], stepped onto a roof sheet that was not fixed by screws and fell seven metres through the roof to the ground below. 3. [COMPANY_4] ([NAME_3]) pleaded guilty to an offence that as a person conducting a business or undertaking (PCBU) who had a work health and safety duty pursuant to s 19 of the Act, it failed to comply with that duty and thereby exposed [NAME_19] to a risk of death or serious injury contrary to s 32 of the Act.

4. The maximum penalty for the offence is a fine of $1,766,130‬.

Procedural History 1. Proceedings were commenced in this court by a Summons filed on 17 November 2022.

2. The matter first came before the court on 25 January 2023.

3. On 17 April 2023 [NAME_3] entered a plea of guilty but the parties were unable to agree on a statement of facts.

4. On 31 July 2023 the matter was listed for a disputed facts sentencing hearing before me for two days on 30 and 31 October 2023. A timetable was set down.

5. On 27 October 2023 the parties signed an Agreed Statement of Facts (PX 1, Tab 2). The defendant also produced a document listing facts still in dispute (MFI 2). It was these which the court is required to determine. [NAME_20], a director of [COMPANY_24] ([NAME_23]), was called by the defendant. He gave evidence to prove the disputed facts. After hearing that evidence, counsel for [NAME_1] (SafeWork) very sensibly conceded that the additional facts put forward by the defendant had been proved.

Summons

The Risk 1. The risk is as described in par 13 of the Summons as follows: "13. The risk was the risk of workers, in particular [NAME_19], suffering death or serious injury from falling from height whilst accessing and/or working on the roof, including on the rear awning roof at the site."

Reasonably Practicable Measures 1. Paragraph 14 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "14. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of the workers, in particular [NAME_19], in that it failed to take· one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a. Undertaking an adequate site-specific risk assessment prior to workers gaining access to the roof and in particular the rear awning roof, which identified the hazards and risks associated with working on the roof, assessed the risks, and determined the most effective control measures to manage the risks; b. Develop a Safe Work Method Statement for the work which: (i) prohibited workers from walking on brittle or fragile or poorly secured roofing materials; and/or (ii) specified the hazards and risks to safety associated with those hazards on the roof: and/or (iii) required all workers to wear a fall arrest harness attached to temporary anchor points at all times when working on the rear awning roof; c. Implementing and enforcing the Safe Work Method Statement by: i. Attending the site regularly to supervise workers to ensure compliance with a Safe Work Method Statement as referred to in sub-paragraph b: and/or ii. Consulting with the site supervisor on the supervision of workers and enforcement by [NAME_23] of workers' compliance with a Safe Work Method Statement as referred to in sub-paragraph b; d. Provide information, training, and instruction to workers about the risks associated with the work on the site and the measures to be implemented to manage the risks so far as reasonably practicable, and/or requiring or directing, that the site supervisor and [NAME_23] provided this information, training and instruction to workers through supervision of the site supervisor and consultation with [NAME_23]."

1. The defendant accepted that it failed to take the measures particularised in each subpar in par 14 of the Summons.

Agreed Facts 1. The parties prepared an Agreed Statement of Facts (PX1, Tab 2). These facts are summarised below. The facts proved by the evidence of [NAME_25], which are no longer in dispute, have been added to the Agreed Facts. 2. [NAME_3]'s business or undertaking is the provision of installation of roofing supplies. [NAME_26] was the sole director, secretary and employee of [NAME_3]. 3. [NAME_29] ([NAME_2]) [COMPANY_6] ([NAME_29]) was engaged to undertake rectification works following storm damage at a site in [ADDRESS], [NAME_2] (the site).

4. On or about 3 September 2020 [NAME_29] engaged [NAME_3] to carry out the rectification works at the site.

5. In or about September 2020 [NAME_3] engaged [NAME_23] by way of verbal agreement to carry out the rectification works at the site, including removing and replacing roof sheets. [NAME_25] is the director of [NAME_23]. At the time he held a national licence to perform high risk work and a general construction induction card. 6. [NAME_23] subcontracted workers to carry out the rectification works, including [NAME_19]. [NAME_19] was a roof tradesman who had been engaged by [NAME_23] from time to time since 2017.

7. On or about 25 September 2020 [NAME_23] commenced work at the site. [NAME_25] was the site supervisor.

8. On or about 10 November 2020 [NAME_29] varied the scope of the rectification works to include the rear awning roof at the site.

9. At [NAME_3]'s request, [NAME_23] was responsible for carrying out the rectification works to the rear awning roof. [NAME_25] had a meeting with an officer of [NAME_29] and [NAME_30] about what to do and what not to do in the area because there were broken areas of the roof.

10. On or about 16 November 2020 [NAME_23] commenced the rectification works to the rear awning roof. The work included the removal and replacement of 15 roof sheets and tidying up the open flashings. There was no possibility of carrying out the work from underneath the roof. There was no safety mesh, roofing wire or nets installed under the rear awning roof.

The Incident 1. On 19 November 2020 [NAME_25], [NAME_19] and [NAME_31] (another worker engaged by [NAME_23]) were removing sheets on the rear awning roof and preparing four replacement sheets. The awning roof was secure because it was screwed down and sheeted in. The workers were working on one section at a time and taking out one sheet at a time to replace. Other [NAME_23] workers were working on the gable roof.

2. Prior to work on the rear awning roof, [NAME_25] lifted the apron flashing. He states that this was done in the presence of [NAME_19] and [NAME_34]. [NAME_25] saw that the roof sheet was not fixed by screws in the top purlin and that the apron had been riveted using a sealant and adhesive. Until the morning of 19 November 2020, no-one had worked in this area other than when [NAME_25] inspected it. 3. [NAME_19] states that his recollection is that nobody discussed with him that the roof sheet was not fixed to the top purlin and he was unaware of that fact. 4. [NAME_25] said that he was absolutely confident that [NAME_19] and [NAME_34] knew there were no screws. [NAME_25]'s evidence established that on the morning of the incident [NAME_34] and [NAME_19] looked underneath the apron flashing, saw that there were no fixings in the top purlin and therefore knew it was not "pan-fixed" and that they should not tread there. No actual words to the effect of "we can't tread there" were stated. However, they were experienced roofers and so nothing needed to be said. 5. [NAME_19] was doing work on the main roof. He saw [NAME_25] moving replacement sheets on the rear awning roof and walked over to assist him. In doing so, he stepped on the roof sheet that was not fixed by screws in the top purlin and fell through the sheet about seven metres to the ground. [NAME_19] had been standing about six metres from the rear edge of the roof and about seven metres from the side roof edge. 6. [NAME_19] had been provided with a fall arrest safety harness. However, he did not wear it on the rear awning roof and was not wearing it on the date of the incident.

7. No employee of [NAME_3] attended the site on the date of the incident prior to [NAME_19]'s fall.

Injuries 1. [NAME_19] sustained multiple fractures to his left and right calcaneus and his left tibia.

Systems of Work Prior to the Incident 1. [NAME_35] and [NAME_38] were workers at the site engaged by [NAME_23]. At a meeting prior to commencing work, Mr [NAME_37] recalls being told not to enter the roof without appropriate safety gear because there were no handrails or scaffolds, and that workers were to wear harnesses at all times. Mr [NAME_37] was hooked up to an anchor point at all times while on the rear awning roof. Mr [NAME_40] also recalls being instructed by [NAME_25] to wear a harness on the gable roof.

2. All the subcontractors had working at heights training, including [NAME_19]. All workers were supplied with their own safety bags, including harnesses, anchor points, ropes and lanyards.

3. A representative from [NAME_29] attended the site every four to five days. [NAME_30] attended the site for one to two hours every three days whilst [NAME_23] was carrying out work at the site. 4. [NAME_30] and [NAME_25] spoke daily. [NAME_25] had daily talks with the workers about the task for the day and did so on the day of the incident. He conducted daily toolbox talks with the workers, but these were not always documented. [NAME_25] conducted an undocumented toolbox talk on 19 November 2020. [NAME_19] does not recall there being any discussion about the process of replacing the roof sheets during the talk. 5. [NAME_25] told [NAME_19] to wear a fall arrest safety harness when close to a roof edge.

Safe Work Method Statement 1. On or about 23 September 2020 [NAME_3] prepared a Safe Work Method Statement for the rectification works (the SWMS). The SWMS identified [NAME_25] as site supervisor. [NAME_23] was responsible under the SWMS for identifying and assessing hazards associated with the rectification works, documenting the hazard control measures and for compliance with work health and safety standards.

2. The SWMS included the following control measures:

1. In Item 8 "Working at Heights:

1. Workers to wear a harness within three metres from gable ends.

2. A fall arrest device with work over 1.8 metres to be used if required in certain areas of the rectification works and only as a last resort.

1. In Item 9 "Setting out the work": All workers within three metres from the roof edge will be attached to a temporary fall arrest system.

2. In Item 12 "As/if required by SOW":

1. Roofing wire is compliant and no need for a harness unless within three metres of a building edge with a parapet lower than 900 millimetres.

2. Any roofer working within three metres from the gutter to be attached to an approved fall arrest system.

3. Check the condition of harness, ropes and shackles.

1. There is no specific reference to the rear awning roof in the SWMS. Although referred to in the SWMS, there was no roofing wire (ie safety mesh) on the rear awning roof. The SWMS did not require workers to wear a fall arrest harness at all times and be attached to a temporary fall arrest system including by anchor points.

2. The SWMS did not vary too much from job to job because it was all high-risk work.

3. Each worker had physically seen a copy of the SWMS and signed it. The rectification works would not have been done if the subcontractors had not signed the SWMS. On or about 25 September 2020 [NAME_25] signed the SWMS as supervisor and [NAME_19] signed the SWMS as a worker. 4. [NAME_30] did not have any conversation or communicate with any of the workers engaged by [NAME_23] about the contents of the SWMS. He did not verify that workers were complying with the SMWS at any stage. 5. [NAME_3] did not amend or update the SWMS following the variation of the scope of roofing works to identify any additional hazards and control measures in relation to the rear awning roof. [NAME_30] did not have any conversations or communicate with any worker engaged by [NAME_23] about updating or amending the contents of the SWMS following the variation.

Pre-start Risk Assessment 1. [NAME_29] prepared a pre-start risk assessment with questions which was sent electronically to [NAME_25] on or about 16 November 2020. [NAME_25] on behalf of [NAME_23] completed the pre-start risk assessment and signed it. Workers engaged by [NAME_23], including [NAME_19], also signed it.

2. In the pre-start risk assessment [NAME_25] stated that the wearing of safety harnesses and gloves would be required. He also answered that the roof was structurally sound to walk on and that potential or existing hazards had been identified and the risk of anyone falling from the roof assessed. 3. [NAME_3] did not conduct a risk assessment of the roof at the site generally nor for the rear awning roof in particular. [NAME_3] did not identify as a risk control measure that workers should wear a fall arrest safety harness at all times and be attached to a fall arrest system by temporary anchor points.

Fall Prevention System 1. [NAME_3] did not provide or implement any fall prevention measures. [NAME_3] did not confirm or verify that [NAME_23] had implemented fall prevention measures and in particular for the rear awning roof.

Instruction, Information or Direction 1. There was no task-specific instruction, information or direction provided by [NAME_30] to workers engaged by [NAME_23] about:

1. The risks of working on the roof and in particular on the rear awning roof.

2. The risk control measures.

3. A requirement to wear a fall arrest safety harness attached to a temporary fall arrest system through anchor points when working on the roof.

Implementation and Supervision 1. [NAME_30] did not regularly attend the site to supervise workers and ensure they were complying with a SWMS that required workers to wear a fall arrest safety harness attached to a temporary fall arrest system when working on the rear awning roof. He did not discuss with [NAME_25] about whether workers were complying with such a SWMS.

Guidance Material

The Regulation 1. Clause 78 of the Work Health and Safety Regulation 2017 ([NAME_2]) mandates a PCBU to manage the risk associated with falls from one level to another. Clause 79(3) provides that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: "(a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable."

Code of Practice 1. The SafeWork Code of Practice "Managing the risk of falls at workplaces" (the Code) was published in August 2019. The Code on p 16 advises that particular attention should be given to tasks that are carried out on or alongside a fragile surface. The Code recommends on p 17 to review a generic risk assessment if there is a likelihood that a person may be exposed to greater, additional or different risks at the specific work area. The Code further recommends on p 19 to review and, as necessary revise, fall control measures when a new hazard or risk is identified.

2. The Code highlights the need for protection around holes, penetrations and openings through which a person could fall, including the use of covers and signage. The Code requires the minimisation of the risk of a fall by providing a fall prevention device, which includes temporary work platforms such as safety mesh to prevent internal falls through a roof. It requires individual fall arrest systems if not reasonably practicable to use a fall prevention device or work positioning system. The Code refers to anchorage points at p 47. It also refers to administrative controls to support other control measures, including "no go" areas. 3. [NAME_3] did not ensure that workers complied with a SWMS that followed guidance material.

Information Sheet and Safety Notice 1. In January 2016 SafeWork published an Information Sheet titled "Safe Work on Roofs". It states that protection must be provided if there is a risk of falling through the roof. It identified control measures such as the installation of safety mesh and a harness system with adequate anchorage points, along with appropriate training and supervision.

2. In November 2018 SafeWork published Initial Project Findings, "Construction blitz on falls from heights", and later published Project Findings Report 1-30 October 2019, "Falls from heights in construction – blitz 2.0".

3. On 4 August 2020 SafeWork published a safety notice on its website titled "Falls through roofs". If sheeting appeared brittle, it advised installing safety mesh, the use of an adjustable fall-arrest system (such as a harness with proper anchor points) and the preparation of a site-specific SWMS.

Australian/New Zealand Standard 1. In 2009 the Australian/New Zealand Standard for "Industrial fall-arrest systems and devices" was published dealing with the selection, use and maintenance of fall arrest systems and devices.

Systems of Work Following the Incident 1. On about 30 November 2020 [NAME_29] issued a Non-conformance Report to [NAME_3]. It states that it had been found that safety practices, including the use of fall arrest harnesses, were not being followed during the rectification works.

2. On about 1 December 2020 SafeWork issued an Improvement Notice to [NAME_3] in relation to the risks of falls through the rear awning roof. On about 7 December 2020 [NAME_3] prepared a revised SWMS in response to the Improvement Notice. Item 9 "Roof sheeting on rear awning" in the revised SWMS required workers to wear a harness and be attached to a temporary fall arrest system during rectification works.

Documentary Evidence for the Prosecutor 1. The prosecutor tendered a Sentence Tender Bundle (PX 1). The folder included inter alia the incident investigation documents, pre-incident system documents, guidance material and post-incident documents.

Evidence for the Defendant 1. [NAME_26] is the sole director of [NAME_3]. He has been involved in the construction industry for 32 years and has 25 years of experience as the managing director of various construction companies. He has successfully completed over 5,000 projects in total and no worker or contractor engaged by him has ever sustained any injuries. 2. [NAME_30] swore an affidavit dated 3 October 2023 (DX 1). He said that [NAME_3] was incorporated in 2016. [NAME_30] has known [NAME_19] for 30 years. [NAME_3] had engaged [NAME_25] and [NAME_23] as a subcontracting roofer for the last 15 years. In that time [NAME_23] had done over 100 jobs for [NAME_3]. [NAME_25] was known to [NAME_30] to have appropriate qualifications and experience to perform such work. [NAME_25] was usually engaged as the site supervisor on [NAME_3] jobs. 3. [NAME_23] was engaged by [NAME_3] as a subcontractor to perform the work at the Moorebank site. That work was later expanded to include a rear awning roof. [NAME_30] received a telephone call from [NAME_25], who indicated that the sheets on the awning roof had been joined together with silicone and the job was "a nightmare". [NAME_30] said to [NAME_25] that all of the workers would need to be "hooked up". 4. [NAME_30] left the risk assessment of the awning roof to [NAME_25]. [NAME_30] never saw the risk assessment completed by [NAME_25]. There was no roofing wire or safety mesh underneath the awning roof, in contrast to the main gable roof. [NAME_30] acknowledged that the SWMS was not amended to specifically address the rear roof awning. [NAME_30] knew that the replacement work on the awning would have to be completed from above. 5. [NAME_30] said in par 50 of DX 1 that [NAME_3] relied on the SWMS and the pre-start risk assessment carried out by [NAME_23]. As previously recited, the SWMS was not amended to deal with the different characteristics of the awning roof. The pre-start risk assessment completed by [NAME_25] was never seen by [NAME_30]. [NAME_3] did not confirm or verify that [NAME_23] was using fall prevention measures on the awning roof.

6. After the incident [NAME_30] spoke to [NAME_25]. [NAME_25] said that he had conducted toolbox talks and had stressed that the workers should be properly harnessed. The evidence from [NAME_25] was that he, [NAME_19], and another worker, were working on the awning roof without being harnessed.

7. In par 61 of DX 1 [NAME_30] said that [NAME_3] had "closed" following the incident. He said that this was "due to a loss of work opportunities".

8. In a second affidavit dated 10 October 2023 (DX 2) [NAME_30] said that [NAME_3] ceased its trading activities in September 2021. He said that this was "due to a decline in business, stemming from factors such as COVID restrictions and other legal proceedings involving myself". [NAME_30] said that he planned to initiate a restructuring process for [NAME_3], to enable it to trade again. 9. [NAME_30] gave oral evidence and was cross-examined. The other legal proceedings to which he referred arose out of a fire on a building site, which has resulted in litigation over a $40 million claim. [NAME_3] ceased trading after the fire, and one inference available is that the cessation of trading by [NAME_3] is tactical and somehow relates to the litigation over the $40 million claim. In cross-examination [NAME_30] said that [NAME_3] had not ceased to exist, it had just done no work since the fire in September 2021. 10. [NAME_30] annexed copies of the financial statements of [NAME_3] for the tax year 2022 to his affidavit. These raised more questions than they answered. [NAME_30] could provide no explanation for $1.8 million in loans made to [NAME_30] personally and to two other [NAME_3] companies which he controls. Nor could he explain the $1.2 million owed by three entities with which he is associated. [NAME_30] said that he delegated such things to his accountant.

11. It seems that prior to September 2021 [NAME_3] was a modestly-sized but profitable small business. The failure of [NAME_3] to undertake any work since September 2021 is most likely related to a tactical decision arising out of a piece of very expensive litigation involving another [NAME_3] company. I find that the lack of income of [NAME_3] is a purely voluntary decision on the part of [NAME_30], and in those circumstances, I do not propose to reduce the appropriate fine.

12. A third affidavit was tendered for the defendant, from [NAME_41] dated 10 October 2023 (DX 3). [NAME_41] is a loss adjustor who has dealt with [NAME_30] for 20 years in a professional capacity. [NAME_41] deposed to the effect of the injury to [NAME_19] upon [NAME_30] and corroborated his genuine remorse. [NAME_41] was also able to say from his experience that [NAME_30] always treated worker and contractor safety with the utmost importance. He was not aware of any safety incidents or problems at any site with which [NAME_30] and [NAME_3] was involved.

Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ([NAME_2]).

Objective Seriousness of the Offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: [NAME_10] v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."

1. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v [NAME_9] (No. 5) [2009] NSWSC 432 at [61].

2. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

3. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: [NAME_43]. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment. 4. [ADDRESS] of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of [NAME_7] v [NAME_8] ([NAME_2]) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."

1. Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."

1. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."

1. My findings about the defendant's level of culpability are based upon the following:

1. The risk was foreseen by [NAME_3] and in any event should have been known by [NAME_3] by reason of guidance material.

2. The likelihood of the risk occurring was high. Once the screws were missing or removed from a sheet on the awning roof, anyone stepping on that sheet would have no support and would fall straight to the ground.

3. The potential consequences of the risk were death or serious injury, given that the fall was one of over seven metres onto concrete.

4. There were simple steps available to eliminate or minimise the risk, being the reasonably practicable steps pleaded in par 14 of the Summons. The plea of guilty encompassed an acceptance that each of the steps was available and reasonably practicable.

5. There was no particular burden or inconvenience of the steps being implemented.

6. There were serious injuries caused to [NAME_19] by the fall.

7. The maximum penalty for the offence is a fine of $1,766,130, which reflects the legislature's view of the seriousness of the offence. 8. [NAME_3] made no attempt to assess the risks posed by the awning roof, which were different to the assessed risks of the gable roof. [NAME_3] did not update its SWMS when it was given the extra task of rectifying the faults in the awning roof. [NAME_3] effectively delegated these matters to [NAME_25]. [NAME_30] had dealt with [NAME_25] for a long time, and both [NAME_30] and [NAME_25] had an excellent safety record over decades, a PCBU cannot delegate their duty to ensure safety to another person: s 14 of the Act. When there is more than one entity conducting business on a site, safety cannot be ensured by only one entity attending to its duties under the Act. The safety of workers requires everyone involved on the site to be conscientious about discharging their safety duties imposed by the Act. It is only in this way that a mistake by one entity will be picked up by another.

1. I find that the level of culpability of [NAME_3] is in the mid range.

Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

2. One aspect of general deterrence which is important in this case, is the need to emphasise to the industrial community that each business working on a site has its own duty to ensure safety. That duty cannot be delegated: s 14 of the Act. Delegation of a duty to ensure safety is dereliction of that duty.

3. The penalty must reflect the need for specific deterrence. [NAME_3] is no longer conducting a business. It is dormant, pending resolution of the fire litigation, but [NAME_30] has plans to revive the business in the future.

Aggravating Factors 1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors 1. [NAME_3] has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 2. [NAME_3] is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. 3. [NAME_3] is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. 4. [NAME_3] has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred. 5. [NAME_3] has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to [NAME_19] was caused by its actions. 6. [NAME_3] entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give [NAME_3] a 25% discount for an early plea. 7. [NAME_3] gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine 1. I am required to have regard to s 6 of the Fines Act 1996 ([NAME_2]) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

2. In Unity Pty Limited v [NAME_1] [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."

1. For the reasons outlined above in my discussion regarding the evidence of [NAME_30], and in particular DX 2, I decline to moderate the appropriate fine on the basis of a reduced capacity to pay. The lack of income of [NAME_3] at the present time is a purely voluntary and tactical decision. In those circumstances there should be no reduction in the fine imposed. Further, as outlined in par 1 above, falls from or through roofs are depressingly common. The need for general deterrence means that there should not be any reduction in the fine.

Costs 1. There will be an order that the defendant is to pay the prosecutor's costs.

Penalty 1. My orders are: 1. [COMPANY_4] is convicted.

2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order [COMPANY_4] to pay a fine of $300,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 ([NAME_2]) that 50% of the fine is to be paid to the prosecutor.

5. Order [COMPANY_4] to pay the prosecutor's costs. 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: 03 November 2023