SafeWork NSW v Advanced Roofing Sydney Pty Ltd

[2022] NSWDC 407

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407

Hearing dates:

1 September 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Advanced Roofing Sydney Pty Ltd is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor’s costs as agreed or assessed.

(6) Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023.

(7) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011 (NSW).

(8)   The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023.

(9)   Liberty to apply, in the event of a failure to comply with these orders.

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

EVIDENCE – how not to prepare an affidavit – defendant filed two affidavits on the afternoon before sentence hearing, in breach of Practice Note 16 timetable – 393 pages of unpaginated material – adding insult to injury – dozens of documents with no relevance to the sentence hearing were annexed to the affidavits – late service cast burden upon court and prosecutor – court time wasted – no utility in annexing dozens of new safety policies which had no relevance on sentence – only a handful of annexed material was relevant– do not just annexe everything in sight

OTHER – defendant conducted a business or undertaking that involved replacing metal roofing, walling and rainwater systems – two workers on roof carrying roof sheets – one worker stepped back and tripped on sandbag – worker fell through a black plastic sheet covering penetration – worker fell 8.42 metres to ground - failure to undertake adequate risk assessment – failure to have fall prevention device – failure to have Safe Work Method Statement that covered the hazard of penetrations – failure to provide information instruction and training that covered penetrations – failure to prohibit work on roof without adequate control measures for the hazard of penetrations

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238, 241

Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291, 299

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

Nash v Silver City Drilling (NSW) 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 Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Ru Dong Li [2018] NSWDC 189

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, April 2016

SafeWork NSW Fact Sheet, Falls – Safety Guide

Safe Work Australia, Safe Work on Roofs Information Sheet, January 2016

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Advanced Roofing Sydney Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
C Magee (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Hicksons Lawyers (Defendant)

File Number(s):

2021/00091546

Judgment

1. On 9 July 2019 Mr Austin Humphreys and Mr Jacob Kara were on a roof carrying a roof sheet to an area where old roof sheets had been stripped. Mr Humphreys stepped backwards, tripped on a sandbag, and fell through a black plastic sheet which was covering a penetration. Mr Humphries fell 8.42 metres to the ground and suffered multiple traumatic injuries to his upper limbs, lower limbs and face.

2. Advanced Roofing Sydney Pty Ltd (Advanced Roofing) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Humphreys and Mr Kara to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in par 11 of the Amended Summons (PX 1, Tab 1) is as follows:

“The risk was the risk to workers, including Mr Humphreys and Mr Kara of death or serious injury as a result of falling through an inadequately protected penetration whilst undertaking work on the roof.”

Reasonably Practicable Measures

5. Paragraph 13 of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“13. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Humphrey and Mr Kara, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

a) Undertaking an adequate risk assessment, for the roofing works that identified the risk of a fall through penetrations, assessed the risk and determined the most effective control measures to manage the risk; and/or

b) Providing a fall prevention device to protect against the risk, such as by Covering the penetrations with material strong enough to prevent people falling through them, for example structural plywood boards, properly secured and marked with Warning signs; and/or

c) Developing, implementing and enforcing a Safe Work Method Statement (SWMS) for the work that identified the hazard of the penetrations and described the measures to be implemented to manage the hazard, such as those mentioned in paragraph (b) above; and/or

d) Providing information, and instruction to the workers about the hazard of the penetrations and the measures to be implemented to manage the hazard, as per the SWMS; and/or

e) Prohibiting work on the roof until adequate control measures were in place to protect against the hazard of the penetrations, such as those mentioned in paragraph (b) above.”

Background

6. The parties presented an Agreed Statement of Facts (PX 1, Tab 2) and this material is summarised below.

7. Advanced Roofing conducted a business or undertaking that involved replacing metal roofing, walling and rainwater systems in the Sydney metropolitan region.

8. Mr Ajmal Aziz Zazy:

1. Was the sole director and company secretary of Advanced Roofing.

2. Was a working director.

3. Had positions in the company which included Supervisor, Estimator and Owner.

4. Held a NSW Contractor Licence as a Roof Plumber.

5. Was responsible for managing all aspects of the business including overall supervision, project administration, organisation management, coordination of project work and site safety.

The Roofing Works

9. Advanced Roofing was engaged by St Joseph’s College to remove the existing roof of the indoor gymnasium and an adjoining lower roof, and to supply and install a new Colorbond roof. The scope of work included removing and replacing ventilation points on the roof (PX 1, Tab 10).

10. The gymnasium roof was 32.8m long and 18.4m wide. The gymnasium roof was positioned over a basketball court. The gymnasium roof was slightly pitched and contained nine ventilation points. A large rectangular ventilation point ran along the centre ridge of the roof. Eight smaller rectangular vents were positioned side-by-side in each corner of the roof.

11. Both the gymnasium roof and the lower adjoining roof contained a parapet edge. The height of the parapet was less than 900mm in several places.

12. Before providing a quotation for the work (PX 1, Tab 11), Advanced Roofing attended the site and conducted an on-site assessment in order to determine the appropriate methodology and process for the work.

13. Prior to commencing the work, Advanced Roofing provided St Joseph’s College with a pack of safety documents (PX 1, Tab 12). The documents listed the safety legislation applicable to the job as being the Act and the Work Health and Safety Regulation 2017 (NSW) (the Regulation).

14. Contained within the safety documents was a “Method policy” (PX 1, Tab 14) which included the following information:

“Protection from falling: ARS [Advanced Roofing] to supply perimeter scaffolds to new buildings. ARS to supply harness to work on existing roof to be replaced. Harnesses are to be used at all times if there is a risk of falling more than 1.8m or closer than 2m from the edge.”

15. The documents included two Safe Work Method Statements (SWMS), one titled “Access to Site and Delivery of Materials SWMS” and one titled “Roof Installation Procedure SWMS”.

16. The Access to Site and Delivery of Materials SWMS (PX 1, Tab 16) included a job step of assessing the work site. The hazards listed for this job step included working at heights and “unprotected penetrations”. The controls listed in the SWMS were for installers to undertake a site risk assessment prior to commencing work and for all “high risk” hazards to be documented and reported to the supervisor. Mr Zazy was listed as the person responsible for ensuring that the controls were implemented.

17. The Roof Installation SWMS (PX 1, Tab 17) identified the hazard of a fall and the controls included scaffolding to the perimeter of the building.

18. Advanced Roofing engaged the following workers to undertake roofing work:

1. Syed Najim, who was the second-in-charge to Mr Zazy.

2. Jacob Kara.

3. Chad Hurst.

4. Mohammed Tahery.

5. Austin Humphreys. Mr Humphreys was 22 years old at the date of the incident.

19. On Friday 5 July 2019, Mr Zazy, Mr Najim, and Mr Hurst commenced work at the site. Advanced Roofing erected scaffolding stairs on the side of the lower roof to enable the workers to access the working area. Mr Zazy directed the workers to dismantle and remove the vents and to place black plastic tarp over them.

20. The work included the removal of the vents from the roof. The larger ventilation point running along the central ridge of the gymnasium roof had safety mesh beneath it. The smaller pairs of vents in each corner of the roof did not have safety mesh beneath them. In order to address the hazard created by the absence of the vents and the existence of the penetrations, Advanced Roofing covered the penetrations with black plastic, surrounded by sandbags and yellow insulation bags. The purpose of the black plastic was to prevent water entering the building. The yellow insulation bags were to indicate to the workers the existence and location of the penetrations.

21. On Friday 5 July 2019, Advanced Roofing did not require the workers to wear harnesses when undertaking the work because it formed the view the parapet of the building provided adequate protection against the risk of a fall from the perimeter edge.

22. On Monday 8 July 2019, the materials for the new roof were delivered to the site. The new roof sheets were lifted by crane and placed in piles on the roof. The dismantled vents were lowered by the crane and taken away.

23. Mr Humphreys commenced work with Advanced Roofing on 8 July 2019, one day prior to the incident. He was engaged to assist in installing metal roof sheeting and to undertake general labouring duties.

The Incident

24. As at 9 July 2019 approximately half of the roofing works had been completed. There were at least four penetrations in the roof covered by black plastic. The penetrations were not protected by plywood covers.

25. Prior to commencing work on 9 July 2019, the workers had a toolbox talk. The toolbox talk record for 9 July 2019 (PX 1, Tab 19) contained the following notations:

“Be aware of your surroundings, look out for each other, be aware when taking sheets off, make sure always stay on the sheets, pull safety wire only with rope.”

26. The workers accessed the roof and continued with the task of replacing the roof sheets.

27. At approximately 10.20am, Mr Humphreys and Mr Kara were on the roof, carrying a roof sheet to an area where there was a pile of the old roof sheets that had been stripped.

28. Mr Humphreys stepped backwards and/or tripped on a sandbag and fell through a black plastic sheet covering a penetration. Mr Humphreys fell 8.42m to the floor of the basketball court below.

Injuries Sustained by Mr Humphreys

29. As a result of the fall Mr Humphreys suffered multiple traumatic injuries to his upper limbs, lower limbs and face. Mr Humphreys suffered the following injuries:

1. A comminuted right fracture of the distal humerus and radial head.

2. Left ulnar clawing.

3. Damaged metatarsals.

4. Right displaced patella fracture.

5. Comminuted fracture of the right acetabular and traumatic posterior hip dislocation.

6. A right sided sciatic nerve injury resulting in right foot drop, nil sensation over the plantar and dorsal surfaces of the right foot and ongoing neuropathic pain.

7. Minimally displaced nasal bone fractures and eyelid and facial lacerations.

8. Right leg deep vein thrombosis.

30. Mr Humphreys underwent surgery on his left arm, pelvis and nasal bones.

31. Mr Humphreys was discharged from hospital on 2 August 2019 with no weightbearing on his bilateral lower limbs for six weeks and left upper limb cast immobilisation for four weeks. As at 4 February 2020 Mr Humphreys was certified unfit for work due to his injuries.

32. His progress and current condition is described more fully in his Victim Impact Statement, to which was attached a medical report (PX 2). These are summarised below.

Guidance Material

33. Clause 78 of the Regulation provided that duty holders must manage the safety risks associated with a fall, including openings through which a person could fall.

34. Clause 79 of the Regulation set out the specific requirements to minimise the risk of fall. Clause 79(3) set out a hierarchy of controls for providing adequate protection against the risk of a fall:

“(3) The 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.”

35. Clause 79(5) of the Regulation provided that a “fall prevention device” includes edge protection and covers.

36. The work carried out by Advanced Roofing was “high risk construction work” within the meaning of cl 291 of the Regulation. As such, Advanced Roofing was required to prepare a SWMS for the work that specified the hazards relating to the work, the risks to health and safety associated with those hazards, described the measures to be implemented to control the risks and described how the control measures were to be implemented, monitored and reviewed: cl 299(2) of the Regulation.

37. SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, dated April 2016 (the Code) (PX 1, Tab 20) was published and available to Advanced Roofing prior to the incident. The Code relevantly provided:

1. Key things to look for when undertaking inspections include holes and openings which will require guarding.

2. The Regulation requires duty holders to work through the hierarchy of controls to choose the control that most effectively eliminates or minimises the risk in the circumstances. This may involve a single control measure or a combination of two or more different controls.

3. A fall prevention device (eg a secure fence, edge protection, work platform or cover) must be used to provide and maintain a safe system of work where persons are working near and around holes, penetrations and openings through which a person could fall, if it is reasonably practicable to do so.

4. Edge protection should consist of guardrails, solid balustrades or other structural components. The top of the guardrail or component should be between 900mm and 1100mm above the working surface.

5. Holes, penetrations and openings through which a person could fall should be made safe immediately after being formed. If a cover is used as a control measure for openings and holes, it must be made of a material strong enough to prevent persons or objects falling through and must be securely fixed to prevent dislodgement or accidental removal. The cover should also include signage indicating its purpose as a cover, for example “Danger Hole Beneath”.

6. If a cover is used as a control measure it must be made of a material strong enough to prevent people or objects falling through the hole, penetration or opening and should be securely fixed to prevent dislodgement or accidental removal. Covers over penetrations should be designed to safely withstand a point load of at least 2 kilonewtons.

7. Guardrails may be used to provide effective fall prevention around openings in floor and roof structures.

8. Fall arrest systems, such as individual fall arrest systems (including harnesses), are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use a fall prevention device or work positioning system or if these higher-level controls might not be fully effective in preventing a fall on their own.

38. SafeWork NSW Fact Sheet, Falls – Safety Guide (PX 1, Tab 21), was published online and available to Advanced Roofing prior to the incident. The Fact Sheet emphasised the importance of planning work to eliminate or control the risk of a fall, including managing the risk by using equipment that will prevent a fall, such as fixed covers over holes and penetrations.

39. Safe Work Australia, Safe Work on Roofs Information Sheet, dated January 2016 (PX 1, Tab 22) was published and available to Advanced Roofing. The Information Sheet relevantly provided:

1. Falls from heights are the major cause of death and injury when working on roofs.

2. Hazards to consider in managing fall risks include unprotected edges, skylights, holes, vents and trip hazards.

3. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls.

4. Workers such as electricians, plumbers, pest control operators, installers of roof aerials, solar panels and air-conditioning systems, can trip and fall on roofs, through roofs and openings or while accessing or exiting roof areas.

5. Falls from even low heights can leave workers with permanent and debilitating injuries such as fractures, spinal cord injuries, concussion and brain damage. The risk of serious injury or death from a fall increases significantly as working heights increase.

1. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls.

Systems of Work Prior to the Incident

40. Prior to the incident Advanced Roofing had developed the safety documents referred to above. I interpolate that on my reading of these documents, I regard them as superficial, generic (not site-specific) and poorly expressed.

41. The safety documents referred to the need to conduct a risk assessment, however Advanced Roofing did not undertake an adequate risk assessment that identified the risk of falling through a penetration and selected the control measure that provided the most protection against the risk.

42. Prior to the incident there were at least eight penetrations on the roof which were covered with black plastic held in place by sandbags and roofing materials. The penetrations were not protected by secure covers or marked with warning signs. The workers were required to work around the penetrations to remove and install roof sheeting.

43. Advanced Roofing generally provided fall arrest systems (harnesses and lanyards) to be used by workers when they were required to undertake work where there was a fall risk. In this instance, Advanced Roofing did not require its workers to wear harnesses when undertaking the work on the roof because it formed the view that the parapet of the building provided adequate protection against the risk of a fall from the edge.

44. Although Advanced Roofing had developed SWMSs, the documents did not address the site-specific hazard of a fall through the penetrations or specify any associated controls. Mr Humphreys was not provided with a copy of the SWMS or given any information about working at heights. Mr Kara had not seen a SWMS prior to the incident.

45. Advanced Roofing managed the risk of a fall through the penetrations by relying on the workers to be aware of their surroundings when working on the roof. Mr Kara was told by Mr Zazy to be aware of the penetrations when working on the roof. Mr Tahery was told by Mr Zazy that the black plastic tarp was not secure and he could fall through it. He was told to take care around the penetrations. Mr Najim was told by Mr Zazy to stay clear of the black plastic tarp over the penetrations. Mr Humphreys was not shown the penetrations at any point prior to the incident.

Steps Taken After the Incident

46. After the incident, in response to Improvement Notices issued by SafeWork NSW directly related to the risk, Advanced Roofing revised its SWMS to include a specific job step of “Working around penetrations and exposed areas without safety mesh which does not conform to AS/NZS 4389” (PX 1, Tab 23).

47. The revised SWMS identified the hazard of a fall through the penetration and specified the relevant controls as follows:

1. Workers must wear work positioning equipment such as a harness anchored to the structural beams at the site of the high roof.

2. All individuals approaching within two metres of an exposed area must wear harnesses.

3. If skylight penetration is removed the opening must be covered with temporary structure/plyboard or roof sheeting until the area is attended to for a permanent fixture such as the new skylight.

48. The revised SWMS was signed off by Advanced Roofing’s workers on 12 July 2019 during a toolbox talk (PX 1, Tab 24).

49. Advanced Roofing fixed covers over the penetrations to the roof made of ply board which was at least 20mm thick.

50. Advanced Roofing conducted toolbox talks with its workers covering the revised measures. Mr Zazy led the toolbox talks as the supervisor/presenter.

51. Advanced Roofing completed the roofing work on 7 November 2019.

Evidence for the Defendant

General Remarks concerning the Evidence for the Defendant

52. On 29 April 2022 this matter was set down for sentence hearing to be held on 1 September 2022. The District Court NSW Criminal Practice Note 16 required the defendant to serve any material relevant to the issue of capacity to pay a fine by 4 August 2022, and any other affidavit material by 18 August 2022. In spite of these obligations, the two affidavits tendered for the defendant were filed in hard and soft copy on the afternoon before the sentence hearing, without apology, excuse or explanation.

53. Neither the court nor the prosecutor should have been expected to absorb the 393 pages of material in those affidavits served late and outside the Practice Note 16 timetable.

54. To add insult to injury, the extensive annexures to the affidavits were not paginated, which resulted in court time being wasted in trying to find a document.

55. Both affidavits annexed dozens of documents to which no reference was made in submissions, no doubt because they had no relevance whatsoever to the sentencing hearing. For example, the court was burdened with copies of all of the new safety policies adopted by Advanced Roofing. It would have been sufficient to list such policies, and there was certainly no utility in annexing copies of policies covering, for example, anti-discrimination, chemical management, drugs and alcohol, and privacy and confidentiality. Fortunately the court had the assistance of experienced counsel in Mr Magee, who focussed upon the handful of relevant policies.

56. The art of preparing an affidavit for a Work Health and Safety Act sentence hearing requires culling material down to the relevant documents, and not just annexing everything in sight.

Affidavit of Mr Zazy

57. Mr Ajmal Aziz Zazy affirmed an affidavit on 30 August 2022 (DX 1). Mr Zazy is the sole director of Advanced Roofing.

Background to Advanced Roofing

58. Mr Zazy commenced working in the roofing industry in 2007 and completed a Bachelor of Business and Commerce in 2010.

59. In 2017 Mr Zazy started his own roofing business, Advanced Roofing.

60. Advanced Roofing primarily focuses on metal roofing in the Sydney metropolitan area.

61. On average Advanced Roofing undertakes 25 roofing contracts per year. Advanced Roofing has two full-time employees and engages subcontractors when required.

62. In 2020 Mr Zazy employed his wife, Ms Bareen Zamaryar-Latif, as Operations Manager to assist in the administration side of the business. Prior to commencing as Operations Manager, Ms Zamaryar-Latif was employed by Westpac in a project management role working on large transformational and compliance projects. Ms Zamaryar-Latif’s role is to assist in growth and provide structural guidance in relation to the risk and financial elements of the business.

63. On 21 January 2021, Advanced Roofing employed an approved apprentice, Mr Amilyo Tobias, through the Department of Education and Training. Mr Tobias is undertaking a four-year apprenticeship and hopes to obtain a Certificate III in Roof Plumbing.

64. Prior to the incident, Advanced Roofing had never been issued with either a Prohibition Notice or Improvement Notice. Nor had it ever been prosecuted for a failure to comply with its work health and safety duties.

The Incident

65. In 2019 Advanced Roofing was contracted to replace the roof of a basketball stadium at St Joseph’s College.

66. Before commencing the job Mr Zazy undertook an initial site inspection. Mr Zazy completed a risk assessment and created the SWMS for Access to Site and Delivery of Materials.

67. Work at the site commenced on 5 July 2019.

68. On 9 July 2019 the following people were at the site:

1. Mr Zazy.

2. Mr Najim.

3. Mr Hurst.

4. Mr Kara.

5. Mr Humphreys.

6. Mr Tahery.

69. Everyone was inducted into the site that day and everyone participated in a toolbox talk.

70. Advanced Roofing implemented the following controls to address the risk of falls from heights:

1. The roof of the Basketball Stadium was surrounded by parapet walls with box gutters on either side.

2. Scaffolding was erected on the side of the mezzanine roof for the workers to allow safe access to the worksite on the roof.

3. Harnesses were provided to be utilised where required.

71. The first task undertaken was removing the vents from the roof. This exposed penetrations in the roof where the vents had been.

72. The penetrations were covered with black plastic sheeting which was held in place by sandbags and covered with yellow insulation bags. The black plastic sheeting provided a waterproof area over the penetrations and the yellow insulation bags assisted workers in identifying location of the penetrations.

73. Mr Zazy stated in pars 26-31 of DX1 that he acknowledges and accepts that:

1. The risk assessment undertaken by Advanced Roofing was not adequate and did not identify the risk of falling through the penetrations, created by the removal of the vents.

2. Advanced Roofing failed to cover the penetrations with a material strong enough to prevent workers falling through the penetrations and failed to mark the penetrations with warning signs.

3. The existing SWMS used at the site was inadequate as it did not identify the hazard created by the penetrations or set out the associated control measures.

4. Advanced Roofing should have provided better information and instruction to the workers on the roof about the hazard created by the penetrations and should not have allowed work to commence until the penetrations had been adequately covered.

5. Advanced Roofing’s failures to take these control measures gave rise to a risk that workers might fall through the penetrations and suffer death or serious injury.

Systems of Work Following the Incident

74. After the incident SafeWork NSW issued four Improvement Notices to Advanced Roofing. Mr Zazy outlined in par 33 of DX1 the amendments made to the original SWMS (PX 1, Tab 17) in response to the Improvement Notices including:

1. The enforcement of harnesses when working on a high roof or when working within two metres of an exposed area.

2. The use of temporary structure ply boarding or roof sheeting where skylight penetrations are removed until a more permanent fixture can be installed.

3. The use of appropriate rubber-based shoes, safety glasses, gloves and earplugs when drilling, grinding, or handling heavy awkward material, and the use of eye protection and a hard hat where required.

75. In addition to the above, Advanced Roofing has taken the following measures to improve its systems of work:

1. Employed an operations manager, Ms Zamaryar-Latif, to assist in driving a culture of compliance and systematic improvement throughout the business.

2. Mr Zazy has started formal Work Health and Safety Training with People Safe Australia. This course is a construction focussed management training that results in a Certificate IV in Work Health and Safety.

3. Engaged an external work health and safety company, CHD Partners, to review its current processes and procedures. Mr Zazy and Ms Zamaryar-Latif have documented and implemented recommendations of CHD Partners such as standard operating procedures and various forms and checklists.

4. Mr Zazy has implemented a new work health and safety system known as CIRT to assist in simplifying Advanced Roofing’s work health and safety management requirements.

5. Implemented several new policies, outlined in par 46 of DX1.

6. Improved SWMSs to provide a significant increase in risk identification, integration with policies and procedures, understanding of legislative requirements, and identification and implementation of controls measures.

Remorse and Contrition

76. Mr Zazy attended the hospital with two co-workers on the night of the incident. He assisted Mr Humphreys in lodging his workers compensation claim and brought him some items to make his stay more comfortable.

77. In par 63 of DX1, Mr Zazy expressed his sincere apology to Mr Humphreys for the injuries that he has suffered.

Consideration

78. 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 (NSW).

Objective Seriousness of the Offence

79. 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: Veen 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].

80. 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].

81. 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.”

82. 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 Wilkinson(No. 5) [2009] NSWSC 432 at [61].

83. 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.

84. 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: Muldrock. 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.

85. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) 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.”

86. 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.”

87. 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.”

88. My findings about the defendant’s level of culpability are based upon the following:

1. Advanced Roofing knew of the risk. In any event the risk was obvious and foreseeable as there was guidance material directed to this particular risk.

2. The likelihood of the risk occurring was high. There were many dangerous unguarded penetrations on the roof.

3. The potential consequences of the risk were death or serious injury.

4. Simple and well-known steps were readily available to eliminate or minimise the risk. As Advanced Roofing recognised by its plea of guilty, it was completely inadequate to say to workers, as was said at the toolbox talk: “Look out for yourself”.

5. There was no great burden or inconvenience in these steps being implemented.

6. Mr Humphries suffered multiple traumatic injuries, which are detailed below. He will never recover and is most unlikely to be able to work again. He is only 25 years old. Mr Kara was exposed to the same risk but fortunately did not fall.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. The defendant did have safety documents, but they were rudimentary and totally inadequate.

9. Placing black plastic over the voids, and then placing sandbags and bags of insulation material around the plastic, increased the risk. In effect they created a trip hazard. Workers on the roof, who were carrying roofing material, would have been looking where they were going, not down at their feet.

10. As counsel for Advanced Roofing accurately put it, the roofing industry is “notorious” for its hazards, and a fall from height carries a “grave” risk of death or serious injury.

89. Counsel for the prosecutor submitted that the matter fell into the mid range of objective seriousness. Counsel for the defendant submitted that it fell into the lower half of the mid range.

90. For the reasons set out above, I find that the level of culpability of Advanced Roofing is in the upper half of the mid range.

Deterrence

91. 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].

92. In my decision in SafeWork NSW v Ru Dong L [2018] NSWDC 189 I listed 22 judgments of this court, delivered since the start of 2016, which involved a fall from height. Further research, and more recent cases added to that list, show that since the start of 2016, the District Court has delivered sentence in 69 cases involving a fall from height. I repeat what I said at par [47] of my previous decision:

“In the light of that troubling litany of death and serious injury, general deterrence is a very important factor in this case.”

93. Counsel for the prosecutor listed many decisions from recent years involving falls from heights, particularly falls from roofs (MFI 1, fn 28)

94. The penalty must reflect the need for specific deterrence. Advanced Roofing is still conducting a business. Its operations involve replacing metal roofing, walling and rainwater systems and the continuing engagement of workers and subcontractors.

Aggravating Factors

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

Mitigating Factors

96. Advanced Roofing does not have a record of prior conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

97. Advanced Roofing is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Advanced Roofing has been in business since October 2017 (PX 1, Tab 4).

98. Advanced Roofing is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

99. Advanced Roofing 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.

100. Advanced Roofing 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 Mr Humphreys was caused by its actions.

101. Advanced Roofing 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 Advanced Roofing a 25% discount for an early plea.

102. Advanced Roofing 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

103. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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.

104. In Unity Pty Limited v SafeWork NSW [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.”

105. Ms Bareen Zamaryar-Latif swore an affidavit on 26 August 2022 (DX2). Ms Zamaryar-Latif is the Operations Manager of Advanced Roofing and is the wife of Mr Zazy.

106. Ms Zamaryar-Latif provided financial evidence in DX 2 (including tax returns and financial statements) as follows:

1. In 2018/2019 financial year, Advanced Roofing paid $126,210 in wages, had total income of $584,484, a net income of $71,327, total assets of $118,034 and total liabilities of $65,558.

2. In 2019/2020 financial year, Advanced Roofing paid $101,332 in wages, had total income of $584,571, a net income of $23,224, total assets of $171,475 and total liabilities of $118,529.

3. In 2020/2021 financial year, Advanced Roofing paid $193,346 in wages, had total income of $562,348, a net loss of $50,543, total assets of $92,156 and total liabilities of $133,636.

4. In 2021/2022 financial year, Advanced Roofing paid $162,589 in wages, had total income of $283,436, a net loss of $64,182.25, total assets of $43,595.34 and total liabilities of $149,257.

107. At the time of the incident, Advanced Roofing engaged five workers including Mr Kara and Mr Humphreys.

108. Currently Advanced Roofing has four full-time employees, including Mr Zazy and Ms Zamaryar-Latif. Advanced Roofing engages subcontractors on a per job basis.

109. I accept the submissions of counsel for the defendant that: Advanced Roofing is a modest sized family business; Mr Zazy and his wife earn a relatively modest income; Advanced Roofing has the capacity to pay a fine; the penalty imposed should not be so high that it might cripple the business. I take these matters into account.

Victim Impact Statements

110. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

111. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

112. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

113. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1). The defendant was convicted at the sentence hearing on 1 September 2022.

114. The court received a written Victim Impact Statement from Mr Austin Humphreys (PX 2), the injured worker. Mr Humphreys read his statement out to the court. His distress was evident.

115. Prior to the incident Mr Humphreys was a fit 22 year old who lived pain-free. He is now in pain every day and can no longer do many of the things he used to enjoy such roofing, football, boxing, playing the guitar, motorbike riding and horse riding. He suffers from post-traumatic stress disorder (PTSD), depression, anxiety when going out in public and is on an opiate maintenance programme due to becoming addicted to painkillers. Mr Humphreys’ social life has completely changed since the incident. He struggles to keep up with social events due to his mental health, PTSD and memory issues. He has lost many friends because of his short temper and violent outbursts, which are also a result of his PTSD.

116. Mr Humphreys is now 25 years old and has a partner and two children. He is unable to play at the park with his children and throw them in the air like he used to. All he can do now is watch.

117. Mr Humphreys has suffered financial hardship and stress due to being unable to work. Annexed to the Victim Impact Statement is a report of Dr Evan Dryson, Specialist Occupational Physician. Dr Dryson stated that he does not believe that Mr Humphreys has any ability to return to the employed workforce even in a part-time or limited capacity. Mr Humphreys told Dr Dryson that he does not feel safe with his life and current living arrangements as he does not have enough money to rent or buy his own place. His family and his partner have taken countless days off work to help care for him and help take him to and from medical appointments. He incurs substantial medical costs and not all of them are covered by workers compensation. After rent and food he is left with no money and no way to save or have any social life.

118. I take the Victim Impact Statement into account on the basis that the harmful impact suffered by Mr Humphreys as a result of the incident is an aspect of harm done to the community.

Further Orders Sought by the Prosecution

119. The prosecutor applied for an order under s 241 of the Act requiring Advanced Roofing to arrange for Mr Zazy to complete a Certificate IV in Work Health and Safety (construction industry specific) within six months of the date of the Court’s orders (MFI 1, proposed order 1).

120. The prosecution also applied for an order under s 238 of the Act requiring Advanced Roofing to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure that Advanced Roofing complies with its obligations under the Act (MFI 1, proposed order 2).

121. The prosecutor sought an order that Advanced Roofing provide the prosecutor with evidence as to completion of proposed order 1 and proposed order 2 as soon as practicable, or by 16 February 2023.

122. The defendant did not oppose the making of such orders and I find that it is appropriate to so order.

Costs

123. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

124. My orders are:

1. Advanced Roofing Sydney Pty Ltd is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000.

4. Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor’s costs as agreed or assessed.

6. Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023.

7. Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011.

8. The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023.

9. Liberty to apply, in the event of a failure to comply with these orders.

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Decision last updated: 14 September 2022