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…
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- Case
- [2022] NSWDC 407
- Decision Date
CaseChat Overview and Summary
The court was required to determine the objective seriousness of the offence, as well as the appropriate penalty, taking into account mitigating and aggravating factors. The defendant had pleaded guilty, which led to a reduction in the fine. The court also had to consider the capacity of the defendant to pay the penalty, as well as the need for general and specific deterrence. Additionally, the court needed to rule on the prosecution's application for costs.
The court found the offence to be of significant objective seriousness, given the risk of death or serious injury to the worker. The mitigating factor of the early guilty plea led to a 25% reduction in the fine. However, the court was heavily critical of the defendant's conduct in filing two lengthy and largely irrelevant affidavits at the last minute, which caused a significant burden on the court and wasted time. The court ordered a fine of $150,000, with 50% to be paid to the prosecutor, and mandated the defendant to pay the prosecutor's costs. Furthermore, the court ordered the defendant to ensure its director completed a Certificate IV in Work Health & Safety (Construction Industry Specific) and to prepare a documented plan for compliance with work health and safety obligations.
The court's final orders included a conviction against Advanced Roofing Sydney Pty Ltd, a fine of $150,000, payment of 50% of the fine to the prosecutor, and payment of the prosecutor's costs. The defendant was also required to ensure its director completed a Certificate IV in Work Health & Safety (Construction Industry Specific) and to prepare a documented plan for compliance with work health and safety obligations. The defendant was to provide evidence of compliance to the prosecutor by 16 February 2023, with liberty to apply in the event of non-compliance.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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