Agius v Hannaford

[2023] ACTMC 5

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Agius v Hannaford
Citation:	[2025] ACTMC 19
Hearing Date:	29 August 2025
Decision Date:	30 October 2025
Before:	Magistrate Temby
Decision:	See [49]
Catchwords:	INDUSTRIAL LAW – SENTENCING – judgment and
punishment – Work Health and Safety – Category 2 offence –
asbestos exposure
Legislation Cited:	Work Health and Safety Act 2011(ACT), ss 19, 32 Work Health and Safety Regulation 2011 (ACT), ss 419, 453, 458
Crimes (Sentencing) Act 2005 (ACT), s 57
Cases Cited:	Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5
SafeWork NSW v Onsite Rental Group Operations Pty Ltd
[2021] NSWDC 228
SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565 Nash v Silver City Drilling (NSW) NSWCCA 96
Comcare v Commonwealth of Australia [2007] FCA 662
SafeWork NSW v McConnel Dowell Constructors (Aust) Pty
Limited (No 3) [2021] NSWDC
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd
[2022] NSWDC 175
SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Darter v Diden [2006] SASC 152
Mahdi Jahandideh v R [2014] NSWCCA 178
Parties:	Jacqueline Agius (Informant)
Benjamin Hannaford (Defendant)
Representation:	Solicitors
Act Director of Public Prosecutions Bevan & Co (Defendant)
File Numbers:	CC 41864 of 2023 CC 40757 of 2024
MAGISTRATE TEMBY:
Facts
1․	The Defendant, Mr Benjamin Hannaford, was a person conducting a business or
undertaking (PCBU) which involved plumbing and general maintenance work. He traded
under the business name ‘RnB Plumbing’.
2․	On 4 May 2022 an individual, Mr Khan, engaged Mr Hannaford to replace the roof on his
garden shed. The work included the removal of material from the site after the roof had
been replaced. The agreed price was $1,643 plus GST.
3․	On 3 June 2022, Mr Hannaford attended Mr Khan’s address with another man who
assisted him (“Mr X”). Mr Hannaford removed and replaced the garden shed roof but he
did not take the old roof sheets away. He left the sheets, which contained asbestos, on
the ground beside the shed. Mr Hannaford was not a licensed asbestos removalist.
4․	On 10 June 2022, Mr Khan asked Mr Hannaford why he had not removed the old roofing
sheets. Mr Hannaford advised Mr Khan that the sheets contained asbestos and he was
arranging for them to be double bagged and removed. He asked for an additional $270
to dispose of the old roofing sheets, which Mr Khan agreed to pay.
5․	On 19 June 2022, Mr Hannaford attended Mr Khan’s property with another man, Mr
Church. Mr Church had agreed to Mr Hannaford using his box trailer to load the sheets,
however Mr Hannaford did not tell Mr Church that the sheets contained asbestos. He
told him that they were collecting an old fence.
6․	Mr Hannaford loaded the trailer while Mr Church stayed in the car. Mr Church then drove
Mr Hannaford to Mr Church’s residence at the caravan park in which he and Mr
Hannaford both lived. Mr Church’s trailer, with the asbestos material, was left covered
with a blue plastic tarp outside Mr Church’s residence for over three weeks. On 14 July
2022, Mr Church drove his trailer to Mr Hannaford’s residence and, with the assistance
of Mr Hannaford’s partner, transferred the roofing sheets to Mr Hannaford’s trailer.
7․	On 18 July 2022, two WorkSafe ACT Inspectors attended Mr Hannaford's residence after
receiving a complaint. They observed that Mr Hannaford’s trailer was uncovered and full
of asbestos corrugated roof sheeting which had not been wrapped in accordance with
the relevant Work Health and Safety Regulation 2011 (WHS Regulation) standards.
8․	On 19 July 2022, WorkSafe ACT issued a notice to Mr Hannaford requiring him to
engage a suitably qualified asbestos removalist to dispose of the materials within 48
hours. Mr Hannaford did not respond to the notice and WorkSafe ACT Inspectors
attended his premises on 22 July 2022. They observed that Mr Hannaford had not complied with the notice. As a result, WorkSafe ACT engaged licensed asbestos removal
companies to remove the material that day.

Breach of Work Health and Safety duties

9․

Under s 19(2) of the Work Health and Safety Act 2011 (WHS Act), Mr Hannaford had a

duty to ensure that the health and safety of other persons was not put at risk from work

carried out as part of the conduct of his business.

10․

Under s 32 of the WHS Act, a person commits a Category 2 offence if:

(a)	the person has a health and safety duty;
(b)	the person fails to comply with that duty; and
(c)	the failure exposes an individual to a risk of death or serious injury or illness.

11․

Mr Hannaford pleaded guilty to having committed a Category 2 offence as a result of his

actions (the Principal Offence). Specifically, he accepted that he failed to take one or

more of the following reasonably practicable measures to eliminate or minimise the risks

to health and safety of workers of his business (namely, Mr X and Mr Church):

(a) engaging, or advisding Mr Khan that he needed to engage, a licensed asbestos

removalist to remove the asbestos sheets;

(b) dealing with the asbestos, including its removal, transport and storage, in a way

that complied with relevant provisions of the WHS Regulation – for example:

(i)    ensuring that anyone engaged as a worker for his business had completed

a recognised asbestos awareness course or training;

(ii)  ensuring that anyone engaged as a worker for his business was aware that

the old roofing sheets contained asbestos;

(iii) ensuring that his business had an asbestos control removal plan;

(iv) using water suppression and ensuring that anyone engaged as a worker for

his business wore the recommended personal protective equipment;

(v)  using the regulated asbestos disposal bags and/or ensuring that the

asbestos was sealed in a double-lined, heavy duty polyethylene sheeting;

and

(vi) ensuring that, during the transportation and subsequent storage of the old

sheets, the box trailer was properly covered.

12․	The Prosecution case is that these failings exposed Mr X and Mr Church to the risk of
inhaling airborne asbestos fibres. Inhaling airborne asbestos fibres can damage lung
tissue which, over time, may lead to lung disease including asbestosis, lung cancer and
mesothelioma. Mr Hannaford did not challenge these propositions.
13․	Mr Hannaford’s failings also exposed Mr Khan, Mr Hannaford’s partner and other people
at the caravan park to the risk of inhaling airborne asbestos fibres. Mr Hannaford accepts
that, as a result, he committed a further Category 2 offence (the Additional Offence)
which I am to take into account in sentencing him for the Principal Offence (Crimes
(Sentencing) Act 2005, s 57).
14․	The maximum penalty for a Category 2 offence when committed by an individual as a
PCBU, as Mr Hannaford was, was a fine of $300,000 at the time of Mr Hannaford’s
offence.

Objective seriousness

General principles

15․ The objective seriousness of an offence against the WHS Act involving a failure to

comply with a health and safety duty is determined by the extent of the duty holder’s

failure to ensure, so far as was reasonably practicable, that workers were not exposed

to risks to their safety (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023]

ACTMC 5 at [16]; SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021]

NSWDC 228 at [30]). Considerations which are relevant to an assessment of the duty

holder’s culpability include (SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565

at [49]):

(a) the potential consequences of the risk (noting that the focus must be on the risk

arising from the failure to take reasonably practicable steps to avoid injury, not the

likelihood of injury resulting – conduct will be more serious, the more serious the

potential injuries, whether or not they are likely to materialise – Nash v Silver City

Drilling (NSW) NSWCCA 96 at [53]);

(b)	the availability of steps to eliminate or minimise the risk;
(c)	the ease with which mitigating steps could have been taken;
(d)	whether the risk was an obvious or clear one;
(e)	whether the risk was known, or ought reasonably to have been known to or

identified by the offender (it is an aggravating factor if the risk was foreseeable

even if the precise cause or circumstance of exposure to the risk were not foreseeable and it is a further aggravating factor if the risk was not only

foreseeable but in fact foreseen by the offender - Comcare v Commonwealth of

Australia [2007] FCA 662, Madgwick J noted at [120]); and

(f) the vulnerability of the workers exposed to the risk.

16․	The culpability of an offender will turn on an evaluation of all the various factors, which
may pull in different directions (Nash v Silver City Drilling (NSW) NSWCCA 96 at [42]).
By way of example, the following scenarios have been considered in other cases:
(a) an offence will be serious where there is an obvious or foreseeable risk to safety

against which appropriate measures were not taken even though such measures

were available and feasible (Smithers v Capitol Chilled Foods (Australia) Pty Ltd

[2023] ACTMC 5 at [16]; SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC

86 at [69]);

(b) the culpability of an offender has been found to be reasonably high in

circumstances where, while the relevant risk was not expected to occur often, the

seriousness of the foreseeable resultant harm was extreme and the steps to be

taken to avoid it were straightforward and involved only minor inconvenience and

little cost (Nash v Silver City Drilling (NSW) NSWCCA 96); and

(c) the neglect of simple, well-known, precautions to deal with an evident and great

risk of injury, take a matter towards the worst-case category (Comcare v

Commonwealth of Australia [2007] FCA 662 at [120]).

Assessment of objective seriousness of Mr Hannaford’s conduct in relation to the

Principal Offence

17․	In my view, this is a serious example of a Category 2 WHS offence. Mr Hannaford was
prohibited from carrying out, or directing or allowing a worker to carry out, work involving
asbestos (s 419(1), WHS Regulations). That prohibition extended to work in relation to
the supply, transport, storage, removal, handling, disposing of or disturbing asbestos (s
419(2), WHS Regulations).
18․	While Mr Hannaford may not have known that the old roof sheets contained asbestos
when he agreed to replace Mr Khan’s roof on his garden shed, he was required to ensure
that all asbestos that was likely to be disturbed by the refurbishment was identified and
removed by a licensed asbestos removalist before the refurbishment commenced (ss
453(1), 458(1) WHS Regulations). There were also mitigatory steps that Mr Hannaford
could have taken to protect himself and Mr X in the event that the sheets did contain asbestos, such as wearing appropriate personal protective equipment and clothing and
using water suppression techniques, which he did not take.
19․	Given Mr Hannaford’s advice to Mr Khan on 10 June 2022 that the old roof sheets
contained asbestos, it is clear that Mr Hannaford realised, at some point during the
removal of those sheets from the garden shed, that they contained asbestos. This view
is consistent with Mr Hannaford’s statement to the author of the Court Duty Report that
he was informed by a neighbour of Mr Khan that the sheets contained asbestos when
he placed them into a pile in Mr Khan’s backyard.
20․	Despite this, he did not engage a licensed asbestos removalist. Nor did he take any other
mitigatory steps, such as using the regulated asbestos disposal bags or sealing the
asbestos in a double-lined, heavy duty polyethylene sheeting.
21․	Mr Hannaford told the author of the Court Duty Report that the additional amount he had
asked Mr Khan to pay was the sum that another tradesman had quoted to remove the
sheets before realising that they contained asbestos. He said that he ‘freaked out a bit’
and removed the sheets himself rather than obtaining further quotes.
22․	In submissions, Mr Hannaford said that he did make further enquiries, which revealed
that the cost of engaging a licensed asbestos removalist (around $2,500) was much
higher than the sum he had quoted Mr Khan ($270), and that he could not afford the
difference. He conceded that he ignored the issue rather than asking Mr Khan for
additional funds.
23․	Whether he made the additional enquiries before or after he removed the roof sheets
from Mr Khan’s property, I accept the Prosecution submission that the issue was easily
remediable. Mr Khan had agreed to pay an additional amount for the safe removal of the
asbestos sheets and Mr Hannaford simply needed to obtain a quote from a licensed
asbestos removalist and ask Mr Khan to pay the cost. It is unlikely that Mr Khan would
have refused.
24․	Mr Hannaford’s eschewal of his responsibilities continued with his engagement of Mr
Church, who was not a licensed asbestos removalist. Worse still, he deliberately sought
to deceive Mr Church by telling him that they were only going to collect an old fence
when he knew that the roof sheets contained asbestos.
25․	As noted earlier in these reasons, the risk to which Mr Hannaford exposed Mr X and Mr
Church, as a result of the breach of his duty, was the risk of them inhaling airborne
asbestos fibres. Generally speaking, the risk of inhaling airborne asbestos fibres from disturbed asbestos, and the significant health risks posed by exposure to asbestos (as
also outlined earlier in these reasons), are notorious.
26․	It is not clear how likely it was that Mr X or Mr Church might inhale airborne asbestos
fibres from roof sheeting that was mainly stored in a stationary position outside, nor how
likely it is that Mr X or Mr Church might develop any of the illnesses which, in a general
sense, may be caused by the inhalation of airborne asbestos fibres, from the exposure
to the roof sheeting that they had. Nevertheless, Mr Hannaford accepts that he knew that
he had exposed Mr X and Mr Church to the risk of inhaling asbestos fibres and, therefore,
that he exposed them to a significant risk of harm (by which I understood that he was
referring to the risk of developing one of the serious health consequences that inhalation
of asbestos fibres may result in).
27․	It is clear from Mr Hannaford’s message to Mr Khan of 10 June 2025 that Mr Hannaford
was aware that exposure to asbestos poses health risks, given his advice that he needed
to take protective steps (double bagging the roof sheets) before removing the sheets
from Mr Khan’s property. He knew that Mr X had been exposed to the asbestos to some
extent on the day the old roof sheets were replaced and he knew that Mr Church could
be exposed to the asbestos for an extended period given that Mr Church took the sheets
back to his residence for storage (which ended up being from 19 June to 14 July 2022).
28․	There were mitigatory measures which were available and feasible, as identified earlier
in these reasons, that Mr Hannaford could have taken to eliminate or reduce the risk of
Mr X or Mr Church inhaling airborne asbestos fibres. They were not onerous,
burdensome or costly.
29․	Ultimately, Mr Hannaford did not take any steps to deal with the asbestos in a way that
complied with the WHS Regulation. He only covered the sheets with a tarp once Mr
Church removed them to his residence.

Assessment of objective seriousness of Mr Hannaford’s conduct in relation to the

Additional Offence

30․	For the same reasons as I have set out above in relation to the Principal Offence, I
consider that the Additional Offence is also a serious example of a Category 2 WHS
offence. Mr Hannaford accepts that he exposed Mr Khan, Mr Hannaford’s partner and
other residents of the carpark where he lived to the risk of inhaling airborne asbestos
fibres and that he failed to take any appropriate available and feasible steps to eliminate
or reduce the risk.

31․ While Mr Hannaford focused in submissions on the three day period when the roof

sheets were at his residence, after he had received notice that his storage of the roof

sheets was not compliant with his regulatory obligations, I find that he was aware that he

was non-compliant, and risked exposing the victims of the Additional Offence, from the

time when he removed the old roof sheets from Mr Khan’s garden shed. The notice he

received from WorkSafe Act only confirmed what Mr Hannaford already knew.

32․	In particular, while Mr Hannaford submitted that he believed he had double bagged the
sheets in compliance with his regulatory obligations, that submission is not consistent
with the agreed facts. He told Mr Khan that the roof sheets needed to be double bagged,
but the facts record that he only covered them with a tarp once Mr Church removed them
to his residence.

Subjective circumstances

33․	Mr Hannaford is 47 years of age. He has strong support from his parents and from his
partner, with whom he lives in a Housing ACT property. He has had previous periods of
problematic alcohol and drug use, however he does not currently use illicit drugs and
does not consider that his use of alcohol is problematic.
34․	While Mr Hannaford has generally held employment throughout his adult life, he has not
worked since early 2024 as a result of suffering health complications following a
motorcycle accident. He has been in receipt of Centrelink benefits for the past 18 months
and is only just able to afford his weekly living expenses. He would have difficulty paying
a fine at this stage.
35․	Fortunately, Mr Hannaford’s health is now improving and he is looking for employment.
He is able to undertake community service work.

Criminal history

36․	Mr Hannaford has a number of entries on his criminal history, however the majority of
his convictions are for driving offences. He has no history of committing Work Health and
Safety offences.
37․	Mr Hannaford is entitled to some leniency in relation to the present offence. The absence
of any like offences suggests that the present offence is an aberration that is not likely to
be repeated. This lessens the significance of specific deterrence as a sentencing
consideration in this matter, although it remains relevant as discussed below.

Plea of guilty

38․	Mr Hannaford submits that he is entitled to the full discount for his plea of guilty. Although
he did not enter a plea of not guilty, and the matter was never listed for hearing, his plea
came more than 18 months after the commencement of proceedings and the utility of his
plea is reduced on account of that delay. I will allow a discount of 20%.

Comparable cases

39․ The Prosecution identified one case in which an individual who was a PCBU was

sentenced for a Category 2 offence involving asbestos exposure. The Prosecution

provided a summary of the outcome of that case from the Queensland Office of the Work

Health and Safety Prosecutor.

40․	The defendant in that case attended a residential home to clean the roof using a high
pressure water device. The roof was constructed in the 1960s and contained asbestos.
Despite the fact that the age of the house gave rise to an obvious risk of asbestos being
present in the roof, and despite there being several simple control measures to minimise
or remove the risk of asbestos exposure, the defendant took no appropriate protective
measures. The defendant also failed to comply with three compliance notes which
directed that the asbestos-contaminated dust (ACD) be removed by a licensed asbestos
removalist.
41․	Inspectors found ACD in greater than minor quantities on cars, plants, the ground and
the house exterior and fence. Traces of ACD were also found at an adjacent residential
property. Accordingly, it was clear that the defendant’s conduct exposed his co-worker
and several other individuals carrying out unrelated work inside the house to the risk of
inhaling ACD and, therefore, to a risk of serious illness.
42․	The Court considered that the overall criminality of the offending warranted a fine of
$34,000 but moderated the penalty having regard to the defendant’s subjective
circumstances. The Court imposed a court-ordered work health and safety undertaking
with a good behaviour order for a period of two years and a recognisance of $25,000 for
the Category 2 offences and a fine of $9,000 for the non-compliance with the
improvement notices. The Court took into account the defendant’s early guilty plea, lack
of relevant criminal history and the fact that the defendant was reliant on social welfare
payments to support himself and his children.

Relevant purposes of sentencing

43․	General and specific deterrence are particularly relevant factors in light of the objects
and terms of the WHS Act (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]). As the Court in SafeWork NSW v McConnel Dowell Constructors (Aust) Pty
Limited (No 3) [2021] NSWDC 105 said at [30]:

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 obligations are breached:

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93

NSWLR 338 at [180].

44․	Specific deterrence is also relevant given that the defendant continues to operate his
business (SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3)
[2021] NSWDC 105 at [31]).
45․	There is a need to make Mr Hannaford accountable and also to denounce his conduct,
particularly the way in which he misled Mr Church. I also recognise the harm caused to
the victims of Mr Hannaford’s conduct. While it is difficult to identify the extent to which
each of the victims of the Principal and Additional Offences were exposed to the risk of
inhaling airborne asbestos fibres, it is accepted that they were exposed to that risk, and
to the risk of developing serious health conditions as a result. At a minimum, the victims
are likely to have experienced some anxiety about that risk materialising.

Sentence

46․	The primary considerations to which I must have regard in determining an appropriate
sentence are the objective seriousness of the offending conduct and the importance of
the sentence reflecting the need for general and specific deterrence (SafeWork NSW v
Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175 at [33]; SafeWork NSW v
Inghams Enterprises Pty Ltd [2023] NSWDC 580; Comcare v Commonwealth of
Australia [2007] FCA 662, at [120]). Mr Hannaford’s offending conduct (with respect to
both the Principal and Additional Offences) was serious and general deterrence is the
dominant sentencing purpose.

47․ Subjective factors play a subsidiary role and should not be permitted to produce a

sentence which fails to adequately reflect the seriousness of the offence (WorkCover

Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]). Mr

Hannaford’s strained financial circumstances are relevant to the sentence which should

be imposed but they are not determinative (Darter v Diden [2006] SASC 152, quoted

with approval in Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]).

48․	It is appropriate to impose a significant punishment on Mr Hannaford to achieve the
relevant purposes of sentencing. Given his strained financial circumstances, it is
impractical to impose a significant fine and I have therefore determined to impose a
comparatively modest fine (compared to the maximum penalty) of $8,000, reduced from
$10,000 for Mr Hannaford’s plea of guilty, together with the imposition of a good
behaviour order requiring Mr Hannaford to complete a substantial number of community
service work hours.

Orders

49․	I make the following orders:
(a) On the charge of committing a category 2 offence, contrary to s 32 of the Work

Health and Safety Act 2011, the Defendant is convicted.

(b)	The Defendant is required to pay a fine of $8,000 within the next 12 months.
(c)	The Defendant is to enter into a Good Behaviour Order for a period of 24 months.

He is required to sign an undertaking to comply with his good behaviour

obligations under the Crimes (Sentence Administration) Act 2005 for that period

with the following additional conditions:

(i)    The Defendant will be on probation, subject to the supervision of the

Director-General of Corrective Services (or delegate) and must obey all

reasonable directions of that person during the period of the Good

Behaviour Order, or such lesser period as determined to be appropriate by

the supervising officer.

(ii)  The Defendant is to report to the Corrective Services Court Duty officer

immediately.

(iii) The Defendant is to perform community service work for a period of 100

hours within 24 months from the date of this order.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.

Associate: Noelle-Alexis Bowles

Date: 30 October 2025