SafeWork NSW v Aria Carpentry and Construction Pty Ltd

[2025] NSWDC 301

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Aria Carpentry and Construction Pty Ltd [2025] NSWDC 301

Hearing dates:

11 June 2025

Date of orders:

8 August 2025

Decision date:

08 August 2025

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   Aria is convicted.

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

(3)   Accordingly, that results in a fine of $150,000.

(4) Pursuant to s 6 of the Fines Act 1996 (NSW), I exercise my discretion and reduce that fine by 10%.

(5)   Accordingly, Aria is to pay a fine of $135,000.

(6) Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50% of the fine is payable to the prosecutor.

(7)   I direct an Adverse Publicity Order in accordance with Annexure A causing it to be published on or before 30 November 2025, or the first edition of the relevant publication after that date, in two consecutive editions of the Master Builders Association Magazine.

(8) Aria Carpentry and Construction Pty Ltd to pay the prosecutor's costs as agreed or assessed.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty

ADVERSE PUBLICITY ORDER – reference to the circumstances of the offence – significant steps taken after the incident – potential impact on the defendant’s reputation in the industry

CAPACITY TO PAY – onus on the defendant to satisfy the court on the balance of probabilities as to the current financial circumstances of the defendant

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 7, 8, 19(1), 31, 32, 236

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100

Inspector Fraser vKarabelas(No 2) [2011] NSWIRComm 153

Jahandideh v R [2014] NSWCCA 178

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Youkhana [2004] NSWCCA 412

Rahme v R (1989) 43 A Crim R 81

SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398

SafeWork NSW v Trans Vent Spiral Tubing Pty Ltd [2020] NSWDC 47

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:

Australian Standard AS/NZS 1576.1:2019 Scaffolding - General Requirements

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Aria Carpentry and Construction Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
B Rauf (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Sparke Helmore (Defendant)

File Number(s):

2024/116716

Publication restriction:

Nil

JUDGMENT

1. By way of Amended Summons, Aria Carpentry & Construction Pty Ltd (Aria) was charged with an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the WHS Act to ensure so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Milan Timotic (Mr Timotic) and Robert Daniel (Mr Daniel), to a risk of death or serious injury.

2. The prosecutor tendered a Prosecution Sentence Tender Bundle (PSTB) which became exhibit A, and an affidavit of Natalie Martin affirmed 6 May 2025 which became exhibit B. Aria tendered an affidavit of Charbel Rahme (Mr Rahme) dated 6 June 2025 which became exhibit 1, and a supplementary affidavit of Mr Rahme sworn 10 June 2025 which became exhibit 2. Mr Rahme is the Managing Director of Aria.

3. Affidavits tendered on behalf of Aria includes paragraphs that were not read, to which I have had no regard. There were issues between the parties as to the late service of material, and I commend counsel for their very professional and co-operative approach to this situation, which allowed the sentencing hearing to proceed.

Background

4. Aria was a registered corporation conducting a business or undertaking of building and carpentry services including house renovations, extensions, residential construction, house framing, decking and cladding, at Unit 6, 4 Violet Street, Revesby in New South Wales.

5. Aria was engaged by principal contractor Delta Construction Group Pty Ltd (ACN 157 815 426) (Delta) on 11 March 2022 to conduct carpentry roof framing and decorative feature works at a residential construction project at 23 Allan Avenue, Belmore NSW (the site). Lloyds Building and Development Pty Ltd (ACN 163 935 699) (Lloyds) was the development manager acting on behalf of the owner of the site.

6. At all material times, the site was a workplace for the purposes of s 8 of the WHS Act.

7. Delta engaged Ultra Scaff & Form Group Pty Ltd (Ultra) to install scaffolding at the site. The licensed scaffolder engaged by Ultra to work on the site verified that the scaffold was safe for non-scaffolders to access and work from it. Delta understood that the scaffolding had been approved for use and agreed for Aria to commence its works on 28 March 2022, despite no handover certificates being provided by Ultra.

8. Between 5 February 2022 and 31 March 2022, the scaffold was not inspected by a licensed scaffolder at any time. Aria had not commenced work at the site until 28 March 2022.

The Workers

9. The following persons were workers of Aria for the purposes of s 7 of the WHS Act:

1. Mr Timotic, who was engaged as an independent contractor by Aria to work as the appointed foreman for the carpentry works being conducted by Aria at the site. Mr Timotic was 40 years of age at the time of the incident. He had been involved in the construction industry since 1996 and held a General Construction Induction Card. Mr Timotic’s usual duties at the site included building, fixing and installing roofing and other building structures.

2. Mr Daniel, who was 20 years of age and was engaged by Aria as a fourth-year apprentice carpenter. Mr Daniel reported to Mr Timotic at the site and assisted Mr Timotic in carrying out work at the site on the day of the incident.

Prior to the Incident

10. On 3 and 4 February 2022, a licensed scaffolder engaged by Ultra erected a quick stage modular scaffold around the perimeter of the building under construction at the site.

11. On or around 28 March 2022, Mr Timotic met with Delta’s sole Director Arthur Karagavrilidis at the site.

12. Prior to the incident, Mr Timotic spoke with Andrew lngrati (Mr lngrati), the full-time supervisor provided by Delta for the site. On or around 28 March 2022, Mr lngrati unsuccessfully attempted to contact Ultra via telephone to request alterations to the scaffolding. This resulted in the scaffolding remaining unaltered by Ultra (or any licensed scaffolder) between 28 March and 31 March 2022.

13. Mr Rahme, director of Aria, was not informed of any issues or concerns in respect of the scaffolding by Delta or any other entity.

The Incident

14. On 31 March 2022, Mr Timotic was working at the site again, conducting works from the third level of the scaffold, and undertaking duties involved with building a chamfered roofing feature on the front of the building carpentry works. Prior to commencing work at the site, Mr Timotic was not informed by Delta or Lloyds of any safety concerns in respect to the scaffolding including that there was a section of scaffold that was not to be accessed.

15. On 31 March 2022, Mr Daniel was standing on the first-floor balcony of the building, passing pieces of cut timber from within the building out to Mr Timotic who was standing on a scaffold plank. At approximately 9.45am, Mr Timotic reached out to take materials from Mr Daniel when the scaffold plank that he was standing on dislodged.

16. Mr Timotic fell through a gap between the scaffold and the building, falling onto the first storey scaffold deck 2.4 metres below, and then a further 2.4 metres to the ground deck, followed by an additional 2.4 metres to the ground. The gap between the scaffold and the building was approximately 700mm. Earlier that morning, Mr Daniel had stood on the same plank that Mr Timotic fell from while he was assisting Mr Timotic to build the roofing feature.

17. At the time of the incident, the scaffolding was incomplete and did not comply with the applicable Australian Standard AS/NZS 1576.1:2019 Scaffolding - General Requirements. There were missing planks, missing handrails, missing kick boards, missing ties, missing cross bracing, gaps greater than 225mm and 300mm between the scaffold and the building that a person could fall through, and the foundations of the scaffold had been undermined by recent wet weather. In addition, access and egress to the scaffold and surrounding work areas at the site were hindered or blocked by rubbish lying on the ground at the site.

18. At the time of the incident, there were open and unprotected stair voids, edges and balconies inside and on the building under construction, from which a worker could fall from varying heights between three and seven metres to the ground or next level below.

After the Incident

19. Following the incident, it was discovered that unauthorised alterations had been made to the scaffolding sometime between 5 February 2022 and the date of the incident. The alterations included scaffolding platforms being installed in an original void area at the front of the building, and the handrails around this area being removed. It is unknown who made the alterations.

20. As a result of the incident, Mr Timotic sustained serious injuries including a laceration of the occipital scalp and fractures to his ribs and spinal vertebrae.

Notification

21. Aria did not notify the regulator, being SafeWork NSW, following the incident. The regulator was made aware of the incident at 11.11am on 31 March 2022 by telephone call from a NSW Police Officer who attended the site. SafeWork NSW Inspectors then attended the site at 12.20pm on the same day. Aria did not have a system in place to notify all notifiable incidents to the regulator.

Relevant Guidance Materials and Statutory Obligations

22. The relevant guidance materials are set out at par 45 of the Agreed Statement of Facts (ASOF).

Systems of Work Prior to the Incident

23. Aria had developed a generic (not site-specific) Safe Work Method Statement (SWMS) for the task of “Carpentry framing, build roof”, which Aria had used at its sites for the preceding five years. The SWMS identified hazards including “falls from heights” associated with working on or around the scaffold, the stairwell void and the site generally. The SWMS also references codes of practices relating to managing the risk of falls in the workplace, construction work, and preventing falls in housing construction. The generic SWMS was provided to Aria workers and signed by Aria workers, including Mr Timotic and Mr Daniel, prior to the incident occurring.

24. The SWMS did not include controls to prevent the use of scaffolding at the site which was incomplete and non-compliant with the relevant Australian Standard, such as obtaining a handover certificate completed by the licensed scaffolder who erected the scaffold, or prohibiting its workers from using the scaffold until it was rectified or made compliant by a competent person.

25. The SWMS provided a control measure which stated roof structures were to be built from plywood flooring sheets set out across the ceiling joists. However, it did not address the task of building the chamfered roof feature on the exterior of the building.

26. Aria did not have an effective system of work in place to prevent its workers from using a scaffold that was incomplete and unsafe.

27. Aria did not receive a handover certificate for the scaffold from Delta or anyone else. Aria did not have a system in place to verify with Delta that the scaffold was without risk to its workers and instead relied upon informal representations made by Delta that the scaffold was safe to work on.

28. Aria did not have a system of work in place requiring its workers to undertake and document a risk assessment of the scaffold before commencing work upon it.

29. Aria did not undertake and document a risk assessment of the scaffold at the site prior to undertaking work on it. Aria did not visually inspect the scaffold to identify whether it was complete or safe its workers to use.

30. Aria did not have a system of work in place to prevent its workers from undertaking work at heights without adequate control measures being implemented in respect of the unprotected and open stair voids, edges and balconies on the building.

31. Aria did not prohibit its workers, in particular Mr Timotic and Mr Daniel, from commencing the work at height until adequate control measures were implemented on the building under construction, such as installing handrails, guard rails, fencing and void covers.

Systems of Work Following the Incident

32. Following the incident, Aria took the following actions:

1. Issued a stop work direction and removed its workers from the site on the date of the incident.

2. Undertook an investigation into the incident.

3. Engaged an external consultant to assist it with work health and safety (WHS) matters, including an audit of its existing WHS systems.

4. Reviewed and revised its SWMS, including following additions:

1. A requirement that scaffolds must have kick boards installed.

2. A requirement that all workers are to wear hard hats at all times.

3. A requirement that its workers install temporary handrailing, secure or cover voids, and ensure perimeter fencing or scaffolding is in place.

4. A requirement that its workers are to install temporary handrails and mid rails across doorway or window openings.

5. A requirement that its workers stay within the boundaries of the scaffold platform when working from scaffolding.

6. A direction that, when possible, workers should not work near edges.

7. A direction that, when possible, workers should cover, block, barricade, or isolate areas of fall risk.

8. A requirement that fall restraints and fall arrest systems be implemented.

9. A pre-start requirement that all equipment, including scaffolding, is visually checked for defects before use.

10. A monthly requirement that all equipment is maintained according to the manufacturer's directions.

5. Improved its monitoring of scaffold safety prior to undertaking works at sites.

Overview of the Business of Aria

33. Aria was founded by Mr Rahme in 2016. Aria first started as a small two-person company which undertook small and low-value contract jobs. Mr Rahme started his apprenticeship after completing school and then undertook subcontract works for other carpenters before establishing Aria.

34. Of note, Mr Timotic was Mr Rahme’s supervisor throughout Mr Rahme’s apprenticeship.

35. Based on the success of Aria and increased business through word of mouth, repeat business and referrals, it has grown into a carpentry company that undertakes residential and commercial carpentry works across Sydney and surrounding areas.

36. The work currently undertaken by Aria includes house framing, decking, cladding and structural steel. Currently, Aria typically undertakes approximately 25-30 projects per year with the works being conventional carpentry works predominantly for residential projects.

37. Aria currently employs 21 employees and provides subcontract work to approximately four to five workers. These employees include a business manager, an estimator, and an executive assistant. The remaining employees are all qualified tradespersons and apprentices.

Injuries

38. As a result of the incident, Mr Timotic suffered a laceration of the occipital scalp and fractures to his ribs and spinal vertebrae. He was immediately conveyed by ambulance to St George Hospital at Kogarah where he received treatment for his injuries.

39. I note that Mr Rahme continued to pay wages to Mr Timotic whilst he was recovering and assisted his return to work at Aria.

Sentencing

40. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

41. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. 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.”

Objective Seriousness of the Offence

42. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…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 offending.”

43. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

44. The duties of a defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

45. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

46. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

47. 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:  Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

43. Subjective factors 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; [2000] NSWIRComm 142 at [31].

44. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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 upon an assessment of all those factors.”

50. His Honour further observed at [42]:

“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 pressure event of the force 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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

51. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in s 3A of the Sentencing Act are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

52. The court is obliged to make an assessment of where, on the scale of criminality, the offence lies referable to the maximum penalty prescribed by the legislature:  R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

53. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence:  WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

54. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize:  Nash v Silver City Drilling at [34].

2. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [34].

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:  Nash v Silver City Drilling at [34] and [53].

4. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

5. Whether the risk was an obvious or clear one.

6. The vulnerability of the workers exposed to the risk:  SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).

55. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of the risk.  In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

The Risks

56. The risks particularised at par 13 of Annexure A to the Amended Summons are detailed at PSTB tab 1 par 32 as follows:

“The risk was the risk of workers, including Mr Timotic and Mr Daniel, suffering serious injury or death as a result of falling from height from, or through, inadequate scaffolding and/or unprotected edges and open stair voids within the building under construction at the site.”

Matters Relevant to Determining the Culpability of the Defendant

57. Aria concedes that, as at 31 March 2022 and in relation to the site, it failed to:

1. Undertake a risk assessment in relation to the task of roof framing at the site by visually inspecting the site and verifying that there was safe access and egress onto stairs, around voids, and between levels of the building under construction at the site and put in place control measures to address the identified risks and hazards.

2. Prohibit its workers from using the scaffolding at the site unless and until a site-specific risk assessment was undertaken.

3. Prohibit its workers from working at heights at the site unless and until adequate control measures were implemented in respect of the unprotected and open stair voids, edges and balconies on the building, such as installing handrails, guard rails, fencing and void covers.

4. Develop, implement and enforce safe work procedures in relation to working at height at the site.

5. Provide adequate information, training and instruction to its workers in the above safe work procedures.

58. The risk of workers falling from height due to incomplete and unsafe scaffolding at the site was obvious. The scaffold was non-compliant with the applicable Australian Standard. A cursory inspection of the scaffold would have revealed that the scaffold was missing planks, handrails, kick boards, ties and cross bracing, and had gaps with the building that a person could easily fall through.

59. The risk of workers falling from height due to unprotected edges and open stair voids was also obvious. It was clearly visible that there were open and unprotected stair voids, edges and balconies inside and on the building under construction.

60. Those risks involved the risk of serious injury or death. There was a risk of a worker falling anywhere between two metres and seven metres from, or through, the scaffolding or the unprotected edges and open stair voids within the building to the ground below. The risk of a worker falling from height at the site was obvious, identifiable and foreseeable.

61. The existence of the risks were known by Aria. There was the SWMS dated 28 March 2022 in which Aria identified the hazard of “falls from height” associated with working on or around the scaffold, the stairwell void and the site generally.

62. The work being done was recognised as “high risk construction work” under the WHS Regulation and the Guidance Material.

63. The likelihood of the risks occurring was significant as the workers were working on or near the incomplete and unsafe scaffold, and the open penetrations and unprotected edges of the building, while concentrating on the tasks at hand.

64. The injuries sustained by Mr Timotic were a manifestation of the seriousness of the risk. The incident could easily have resulted in a fatality. Serious injury or death is the all too frequent consequence of a worker falling from a height while working at a building or construction site.

65. More than one person was exposed to the risk. Apart from Mr Timotic, Mr Daniel was also put at risk. It was pure luck that Mr Daniel was not injured. Earlier on the day of the incident, Mr Daniel had stood on the same scaffold plank which became dislodged when Mr Timotic stood on it and from which he then fell, while Mr Daniel was assisting him to build the roofing feature.

66. There were simple and effective steps available to eliminate or minimise the risk, being the steps pleaded in par 14 of Annexure A to the Amended Summons.

67. There was no burden or inconvenience involved in those steps. Most of those steps involved no cost. Indeed, many of those steps were implemented after the incident by Aria. For example, Aria implemented a requirement for the scaffold to be inspected to determine whether all components were present, correctly installed and in good condition before any of Aria’s workers commenced work on the scaffold.

68. The available ways to eliminate or minimise the risk should have been known by the offender. There was extensive Guidance Material which identified the need for a risk assessment to be undertaken before workers commenced working at heights on scaffolds and buildings under construction.

69. No adequate controls were in place at the time of the incident to prevent falls from the scaffold, roof or stair void areas by Aria’s workers engaged at the site.

70. I find that this is a case where the offender ignored the risk to its workers falling from a height while working near the incomplete scaffold, and the unprotected and open stair voids, edges and balconies on the building. Aria did not ensure that the scaffold and the building were safe to access at height. Aria did not have a system in place to control the risk.

71. I find that there is no adequate explanation for the failure by Aria to conduct an inspection of the scaffold and the building, and identify their hazards.

72. In assessing Aria’s culpability, I have had regard to the role of other parties in relation to the site, and their relative contribution to the circumstances that gave rise to the risk. The default of the principal contractor Delta made a contribution to the creation of the risk and the serious injury to Mr Timotic. However, Aria had its own independent safety duty under the WHS Act. As the entity with direct control of the work on the day of the incident, Aria had both the power, as well as the obligation, to ensure that the scaffold was safe and there were no unprotected edges and voids.

73. Aria submitted that the court should also have regard to the following matters which go to the objective seriousness:

1. Aria was not responsible for erecting, or maintaining, the scaffolding at the site. Rather, Delta had engaged Ultra to install the scaffolding. This occurred on around 3 and 4 February 2022 and the licensed scaffolder verified that the scaffold was safe for non-scaffolders to access and work from it.

2. The only piece of work to be undertaken by Aria which required the scaffold to be used was the completion of a decorative roofing feature at the front of the building. For all other work on the roof, the workers used ladders or worked on the roofing frame itself. Delta understood that the scaffolding had been approved for use and agreed for Aria to commence its carpentry roof framing and decorative feature works on 28 March 2022.

3. Mr Rahme, as Managing Director of Aria, had appointed Mr Timotic as the foreman (Aria’s site supervisor) for the site at the time of the incident. Mr Timotic had over 20 years of experience in the construction industry and, as noted above had been Mr Rahme’s supervisor during the time when Mr Rahme was an apprentice. Given that Mr Rahme could not be at the sites at which Aria was undertaking projects, he was relying on experienced and qualified tradespeople to supervise the works.

4. In the above circumstances, while there was a general awareness of the risk of falling from heights, neither Mr Rahme nor Mr Timotic were informed of any issues or concerns in respect of the scaffolding by Delta or any other entity.

5. To the contrary, Mr Rahme understood from his discussions with Delta that the site was safe and ready for Aria to commence works and that this included access to the scaffold to carry out works.

74. The construction industry is a notoriously dangerous industry in part because the industry involves workers being required to perform their tasks above ground level, which is inherently unsafe. These present circumstances highlight the need for caution on construction sites, including the obvious need to ensure people are not put in harm’s way when moving around at height.

75. Finally, neither Lloyds, Delta or Ultra have been prosecuted at all in relation to the incident. Nonetheless, Aria should have inspected the site itself to ensure that the workplace, and in particular the scaffolding, was appropriately installed and safe for workers to utilise it for the purposes of the work.

Deterrence

76. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

77. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace:  Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J). Falls from heights on building sites are increasing as are the devastating injuries that can follow. The industry must pay far more attention to these risks and abide with their work health and safety duty to protect their workers whilst at work.

78. When examining matters of deterrence, both specific and general deterrence apply:  R v Miria [2009] NSWCCA 68.

79. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

80. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and working, in particular at height, where various materials are being moved around and the scaffolding has not been appropriately inspected nor maintained.

81. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

82. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

83. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

Aggravating Factors

84. The plea of guilty represents an acknowledgment of its failures which gave rise to Mr Timotic being exposed to the risk, and of the manifestation of that risk in the serious injuries he sustained.

85. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

86. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

87. The defendant has never been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.

88. I accept that the defendant is a corporate citizen of good character and has proactively provided employment opportunities to those wanting to commence work in the industry, and mentors and trains young apprentices. Ironically Mr Timotic trained Mr Rahme, and I accept that this has had a significant deleterious effect on Mr Rahme.

89. I also accept that Aria has made charitable donations and contributions to the community, and is well-regarded in the community: s 21A(3)(f) of the Sentencing Act.

90. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect its workers, but there was no enforcement of such systems when the workers went to perform the installation tasks.

91. I accept that the defendant has demonstrated a very strong commitment to workplace safety, has taken significant steps and invested in many safety initiatives, and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

92. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

93. The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

94. Whilst not an exculpatory factor directly, I note that Mr Rahme has suffered extra curiae punishment, which I consider must be enormous, by virtue of the fact the Mr Timotic effectively trained Mr Rahme, and it was Mr Timotic who was injured and in coming to my determination overall, I have taken this into consideration.

87. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

Capacity to Pay

96. Section 6 of the Fines Act 1996 (NSW) provides as follows:

“6 Consideration of an accused's means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”

97. The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty:  McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]. I note that Aria accepts this obligation.

98. The offender’s capacity to pay is relevant but not decisive:  Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).

99. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

100. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]:

“The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:

‘[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50):

“It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.”

[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82):

“... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).”

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed:

“... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty …

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...”

[85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476:

“Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.”’”

101. 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.”

102. I accept this authority is relevant to these proceedings. The company consisted of a small number of employees, it has endured some financial hardship and could not be described as a “large corporation”.

103. The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that:

“It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty.”

104. It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the court has determined the appropriate fine(s).

105. I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows:

1. The financial position and means of a defendant should be taken into account when determining the fine to be imposed.

2. The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that it does not have the capacity to meet a fine.

3. It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be undertaken.

4. It is for the prosecutor to check the information provided by the defendant and to assist the court in relation to the assessment of the defendant's capacity to pay.

5. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence:  Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].

106. The defendant presented a small amount of evidence setting out its financial position, however, I accept that such evidence reflects a somewhat limited capacity to pay a fine.

107. That evidence demonstrates that during 2020 and 2021, as a result of the COVID-19 pandemic, the defendant experienced a substantial decline in annual turnover. I further accept that a large fine would be detrimental to the ongoing survival of the defendant as it does not have available funds and is operating at a loss. Such fine may result in the defendant becoming insolvent, or I accept, may have to terminate workers.

108. Aria relies on the affidavit of Charbel Rahme dated 6 June 2025 (exhibit 1) and a supplementary affidavit of Charbel Rahme dated 10 June 2025 (exhibit 2). The prosecutor very fairly concedes that the court can take into account the size of the offender’s business in imposing a fine. Limited information was provided for the most recent two financial years.

109. Understandably, the prosecutor takes issue with whether the documents demonstrate that Aria has shown losses in the two past financial years and another loss potentially in this financial year. At pars 58-60 of the affidavit of Charbel Rahme (exhibit 1) there was no explicit advance of a submission that Aria has a reduced capacity to pay a fine pursuant to s 6 of the Fines Act. The prosecutor submits that, even if that had been included, the offender has not discharged its evidentiary onus in relation to capacity to pay.

110. I accept that these documents have not been provided and could suggest that the company has the capacity to pay a substantial fine. Aria however submits that, on the basis of the Rahme affidavit, that the company has been trading at a loss for the financial years ending June 2023 and June 2024.

111. As his Honour Judge Russell SC observed in SafeWork NSW v Trans Vent Spiral Tubing Pty Ltd [2020] NSWDC 47 at [88]:

“…previous decisions have said that it is not enough for an offender to selectively place information before the court in relation to the financial position of a company. At the very least, the material put before the court should include balance sheets, profit and loss statements and tax returns.”

112. I accept that the company has gone through some difficult financial times and note that Mr Rahme deposes to having drawn a minimal salary for himself and not paid himself any dividends. I also accept that he has tried to support Mr Timotic as best he can, whilst trying to run the company, so as to avoid having to lay off employees. I accept that it is appropriate that I exercise my discretion to allow the defendant some additional leniency, and I will apply a reduction to the fine.

113. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution:  Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).

114. However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.

115. Whilst the defendant submits it is a small company and currently employs 25 odd workers and contractors, I do not accept that this is a small company that does not have a capacity to pay a fine. A component of a fine is also to demonstrate to the community that disregard for the work and safety of workers on work sites is intolerable.

116. On the basis of the totality of the documents before me, I propose to exercise my discretion under s 6 of the Fines Act and afford the defendant some leniency.

117. The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so.  Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.

118. The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Adverse Publicity Order

119. The prosecutor seeks an Adverse Publicity Order pursuant to s 236 of the WHS Act. The Adverse Publicity Order is contained within Annexure A to this judgment. Whilst Aria does not oppose the making of such order, it is opposed to the form of the proposed order submitted by the prosecutor and it submits:

“In particular, the proposed order sought by the Prosecutor:

a.   does not accurately reflect the circumstances of the Incident and the involvement of Aria having regard to the matters of fact contained in the Agreed Statement of Facts;

b.   gives an impression that Aria is the sole party involved in relation to the Incident and does not provide any context of the nature of Aria’s involvement and that there were a number of other parties involved in the construction of the scaffolding and its maintenance and that Aria relied on representations made by those parties as to the use of the scaffolding; and

c.   does not make any reference to the significant steps taken by Aria following the Incident to improve its systems and procedures to address, for its part, the identified failures.”

120. Whilst the defendant submits that the inaccuracies and omissions that it has provided in this regard are significant in the circumstances where Aria is a small business and relies on its reputation, repeat business, referrals and word of mouth for its continued work, I do not accept that would counterbalance an Adverse Publicity Order which ought be made in accordance with s 236 of the WHS Act. Thus, I propose to make the order contained within Annexure A.

Penalty

121. I make the following orders:

1. Aria is convicted.

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

3. Accordingly, that results in a fine of $150,000.

4. Pursuant to s 6 of the Fines Act 1996 (NSW), I exercise my discretion and reduce that fine by 10%.

5. Accordingly, Aria is to pay a fine of $135,000.

6. Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50% of the fine is payable to the prosecutor.

7. I direct an Adverse Publicity Order in accordance with Annexure A, causing it to be published on or before 30 November 2025, or the first edition of the relevant publication after that date, in two consecutive editions of the Master Builders Association Magazine.

8. Aria Carpentry and Construction Pty Ltd to pay the prosecutor's costs as agreed or assessed.

Annexure A - Adverse Publicity Order (19.7 KB, docx)

**********

Amendments

20 August 2025 - Order (8) added

Decision last updated: 20 August 2025