SafeWork NSW v Canon Roofing Solutions Pty Ltd

Case •

[2023] NSWDC 467

•

03 November 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467
Hearing dates: 30 October 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   Canon Roofing Solutions Pty Ltd is convicted.

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

(3)   Order Canon Roofing Solutions Pty Ltd to pay a fine of $300,000.

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

(5)   Order Canon Roofing Solutions Pty Ltd to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from heights – roof sheet not secured by screws – worker fell through roof – failure to undertake adequate site-specific risk assessment – failure to develop, implement and enforce adequate Safe Work Method Statement – failure to provide information, training and instruction

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 14, 19, 32

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

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

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

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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 Evolve Roofing Pty Ltd [2023] NSWDC 75

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

Australian/New Zealand Standard, “Industrial fall-arrest systems and devices” 2009

SafeWork NSW Code of Practice, “Managing the risk of falls at workplaces” August 2019

SafeWork NSW Information Sheet, “Safe Work on Roofs” January 2016

SafeWork NSW Initial Project Findings, “Construction blitz on falls from heights” November 2018

SafeWork NSW Project Findings Report, “Falls from heights in construction – blitz 2.0” 1-30 October 2019

SafeWork NSW Safety Notice, “Falls through roofs” 4 August 2020

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
Canon Roofing Solutions Pty Ltd (Defendant)
Representation:

Counsel:
I Fraser (Prosecutor)
P Barham (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Simone Legal (Defendant)
File Number(s): 2022/346637

Judgment

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

  2. On 19 November 2020 workers were carrying out roof rectification works at a site in Moorebank. A worker, Mr Troy Irwin, stepped onto a roof sheet that was not fixed by screws and fell seven metres through the roof to the ground below.

  3. Canon Roofing Solutions Pty Ltd (Canon) pleaded guilty to an offence that as a person conducting a business or undertaking (PCBU) who had a work health and safety duty pursuant to s 19 of the Act, it failed to comply with that duty and thereby exposed Mr Irwin to a risk of death or serious injury contrary to s 32 of the Act.

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

Procedural History

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

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

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

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

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

Summons

The Risk

  1. The risk is as described in par 13 of the Summons as follows:

“13.   The risk was the risk of workers, in particular Mr Irwin, suffering death or serious injury from falling from height whilst accessing and/or working on the roof, including on the rear awning roof at the site.”

Reasonably Practicable Measures

  1. Paragraph 14 of the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“14.    The defendant failed to ensure, so far as is reasonably practicable, the health and safety of the workers, in particular Mr Irwin, in that it failed to take· one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a.   Undertaking an adequate site-specific risk assessment prior to workers gaining access to the roof and in particular the rear awning roof, which identified the hazards and risks associated with working on the roof, assessed the risks, and determined the most effective control measures to manage the risks;

b.   Develop a Safe Work Method Statement for the work which:

(i)   prohibited workers from walking on brittle or fragile or poorly secured roofing materials; and/or

(ii)   specified the hazards and risks to safety associated with those hazards on the roof: and/or

(iii)   required all workers to wear a fall arrest harness attached to temporary anchor points at all times when working on the rear awning roof;

c.   Implementing and enforcing the Safe Work Method Statement by:

i.   Attending the site regularly to supervise workers to ensure compliance with a Safe Work Method Statement as referred to in sub-paragraph b: and/or

ii.   Consulting with the site supervisor on the supervision of workers and enforcement by PRW Services of workers' compliance with a Safe Work Method Statement as referred to in sub-paragraph b;

d. Provide information, training, and instruction to workers about the risks associated with the work on the site and the measures to be implemented to manage the risks so far as reasonably practicable, and/or requiring or directing, that the site supervisor and PRW Services provided this information, training and instruction to workers through supervision of the site supervisor and consultation with PRW Services.”

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

Agreed Facts

  1. The parties prepared an Agreed Statement of Facts (PX1, Tab 2). These facts are summarised below. The facts proved by the evidence of Mr Whalan, which are no longer in dispute, have been added to the Agreed Facts.

  2. Canon’s business or undertaking is the provision of installation of roofing supplies. Mr Byron Burke was the sole director, secretary and employee of Canon.

  3. Johns Lyng Insurance Building Solutions (NSW) Pty Ltd (Johns Lyng) was engaged to undertake rectification works following storm damage at a site in Helles Avenue, Moorebank NSW (the site).

  4. On or about 3 September 2020 Johns Lyng engaged Canon to carry out the rectification works at the site.

  5. In or about September 2020 Canon engaged PRW by way of verbal agreement to carry out the rectification works at the site, including removing and replacing roof sheets. Mr Whalan is the director of PRW. At the time he held a national licence to perform high risk work and a general construction induction card.

  6. PRW subcontracted workers to carry out the rectification works, including Mr Irwin. Mr Irwin was a roof tradesman who had been engaged by PRW from time to time since 2017.

  7. On or about 25 September 2020 PRW commenced work at the site. Mr Whalan was the site supervisor.

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

  9. At Canon’s request, PRW was responsible for carrying out the rectification works to the rear awning roof. Mr Whalan had a meeting with an officer of Johns Lyng and Mr Burke about what to do and what not to do in the area because there were broken areas of the roof.

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

The Incident

  1. On 19 November 2020 Mr Whalan, Mr Irwin and Mr Jessie Newman (another worker engaged by PRW) were removing sheets on the rear awning roof and preparing four replacement sheets. The awning roof was secure because it was screwed down and sheeted in. The workers were working on one section at a time and taking out one sheet at a time to replace. Other PRW workers were working on the gable roof.

  2. Prior to work on the rear awning roof, Mr Whalan lifted the apron flashing. He states that this was done in the presence of Mr Irwin and Mr Newman. Mr Whalan saw that the roof sheet was not fixed by screws in the top purlin and that the apron had been riveted using a sealant and adhesive. Until the morning of 19 November 2020, no-one had worked in this area other than when Mr Whalan inspected it.

  3. Mr Irwin states that his recollection is that nobody discussed with him that the roof sheet was not fixed to the top purlin and he was unaware of that fact.

  4. Mr Whalan said that he was absolutely confident that Mr Irwin and Mr Newman knew there were no screws. Mr Whalan’s evidence established that on the morning of the incident Mr Newman and Mr Irwin looked underneath the apron flashing, saw that there were no fixings in the top purlin and therefore knew it was not “pan-fixed” and that they should not tread there. No actual words to the effect of “we can’t tread there” were stated. However, they were experienced roofers and so nothing needed to be said.

  5. Mr Irwin was doing work on the main roof. He saw Mr Whalan moving replacement sheets on the rear awning roof and walked over to assist him. In doing so, he stepped on the roof sheet that was not fixed by screws in the top purlin and fell through the sheet about seven metres to the ground. Mr Irwin had been standing about six metres from the rear edge of the roof and about seven metres from the side roof edge.

  6. Mr Irwin had been provided with a fall arrest safety harness. However, he did not wear it on the rear awning roof and was not wearing it on the date of the incident.

  7. No employee of Canon attended the site on the date of the incident prior to Mr Irwin’s fall.

Injuries

  1. Mr Irwin sustained multiple fractures to his left and right calcaneus and his left tibia.

Systems of Work Prior to the Incident

  1. Mr Kieren Holloway and Mr Jason Hinton were workers at the site engaged by PRW. At a meeting prior to commencing work, Mr Holloway recalls being told not to enter the roof without appropriate safety gear because there were no handrails or scaffolds, and that workers were to wear harnesses at all times. Mr Holloway was hooked up to an anchor point at all times while on the rear awning roof. Mr Hinton also recalls being instructed by Mr Whalan to wear a harness on the gable roof.

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

  3. A representative from Johns Lyng attended the site every four to five days. Mr Burke attended the site for one to two hours every three days whilst PRW was carrying out work at the site.

  4. Mr Burke and Mr Whalan spoke daily. Mr Whalan had daily talks with the workers about the task for the day and did so on the day of the incident. He conducted daily toolbox talks with the workers, but these were not always documented. Mr Whalan conducted an undocumented toolbox talk on 19 November 2020. Mr Irwin does not recall there being any discussion about the process of replacing the roof sheets during the talk.

  5. Mr Whalan told Mr Irwin to wear a fall arrest safety harness when close to a roof edge.

Safe Work Method Statement

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

  2. The SWMS included the following control measures:

  1. In Item 8 “Working at Heights:

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

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

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

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

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

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

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

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

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

  3. Each worker had physically seen a copy of the SWMS and signed it. The rectification works would not have been done if the subcontractors had not signed the SWMS. On or about 25 September 2020 Mr Whalan signed the SWMS as supervisor and Mr Irwin signed the SWMS as a worker.

  4. Mr Burke did not have any conversation or communicate with any of the workers engaged by PRW about the contents of the SWMS. He did not verify that workers were complying with the SMWS at any stage.

  5. Canon did not amend or update the SWMS following the variation of the scope of roofing works to identify any additional hazards and control measures in relation to the rear awning roof. Mr Burke did not have any conversations or communicate with any worker engaged by PRW about updating or amending the contents of the SWMS following the variation.

Pre-start Risk Assessment

  1. Johns Lyng prepared a pre-start risk assessment with questions which was sent electronically to Mr Whalan on or about 16 November 2020. Mr Whalan on behalf of PRW completed the pre-start risk assessment and signed it. Workers engaged by PRW, including Mr Irwin, also signed it.

  2. In the pre-start risk assessment Mr Whalan stated that the wearing of safety harnesses and gloves would be required. He also answered that the roof was structurally sound to walk on and that potential or existing hazards had been identified and the risk of anyone falling from the roof assessed.

  3. Canon did not conduct a risk assessment of the roof at the site generally nor for the rear awning roof in particular. Canon did not identify as a risk control measure that workers should wear a fall arrest safety harness at all times and be attached to a fall arrest system by temporary anchor points.

Fall Prevention System

  1. Canon did not provide or implement any fall prevention measures. Canon did not confirm or verify that PRW had implemented fall prevention measures and in particular for the rear awning roof.

Instruction, Information or Direction

  1. There was no task-specific instruction, information or direction provided by Mr Burke to workers engaged by PRW about:

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

  2. The risk control measures.

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

Implementation and Supervision

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

Guidance Material

The Regulation

  1. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) mandates a PCBU to manage the risk associated with falls from one level to another. Clause 79(3) provides that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by:

“(a)  providing a fall prevention device if it is reasonably practicable to do so, or

(b)  if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

(c)  if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.”

Code of Practice

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

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

  3. Canon did not ensure that workers complied with a SWMS that followed guidance material.

Information Sheet and Safety Notice

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

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

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

Australian/New Zealand Standard

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

Systems of Work Following the Incident

  1. On about 30 November 2020 Johns Lyng issued a Non-conformance Report to Canon. It states that it had been found that safety practices, including the use of fall arrest harnesses, were not being followed during the rectification works.

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

Documentary Evidence for the Prosecutor

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

Evidence for the Defendant

  1. Mr Byron Burke is the sole director of Canon. He has been involved in the construction industry for 32 years and has 25 years of experience as the managing director of various construction companies. He has successfully completed over 5,000 projects in total and no worker or contractor engaged by him has ever sustained any injuries.

  2. Mr Burke swore an affidavit dated 3 October 2023 (DX 1). He said that Canon was incorporated in 2016. Mr Burke has known Mr Irwin for 30 years. Canon had engaged Mr Whalan and PRW as a subcontracting roofer for the last 15 years. In that time PRW had done over 100 jobs for Canon. Mr Whalan was known to Mr Burke to have appropriate qualifications and experience to perform such work. Mr Whalan was usually engaged as the site supervisor on Canon jobs.

  3. PRW was engaged by Canon as a subcontractor to perform the work at the Moorebank site. That work was later expanded to include a rear awning roof. Mr Burke received a telephone call from Mr Whalan, who indicated that the sheets on the awning roof had been joined together with silicone and the job was “a nightmare”. Mr Burke said to Mr Whalan that all of the workers would need to be “hooked up”.

  4. Mr Burke left the risk assessment of the awning roof to Mr Whalan. Mr Burke never saw the risk assessment completed by Mr Whalan. There was no roofing wire or safety mesh underneath the awning roof, in contrast to the main gable roof. Mr Burke acknowledged that the SWMS was not amended to specifically address the rear roof awning. Mr Burke knew that the replacement work on the awning would have to be completed from above.

  5. Mr Burke said in par 50 of DX 1 that Canon relied on the SWMS and the pre-start risk assessment carried out by PRW. As previously recited, the SWMS was not amended to deal with the different characteristics of the awning roof. The pre-start risk assessment completed by Mr Whalan was never seen by Mr Burke. Canon did not confirm or verify that PRW was using fall prevention measures on the awning roof.

  6. After the incident Mr Burke spoke to Mr Whalan. Mr Whalan said that he had conducted toolbox talks and had stressed that the workers should be properly harnessed. The evidence from Mr Whalan was that he, Mr Irwin, and another worker, were working on the awning roof without being harnessed.

  7. In par 61 of DX 1 Mr Burke said that Canon had “closed” following the incident. He said that this was “due to a loss of work opportunities”.

  8. In a second affidavit dated 10 October 2023 (DX 2) Mr Burke said that Canon ceased its trading activities in September 2021. He said that this was “due to a decline in business, stemming from factors such as COVID restrictions and other legal proceedings involving myself”. Mr Burke said that he planned to initiate a restructuring process for Canon, to enable it to trade again.

  9. Mr Burke gave oral evidence and was cross-examined. The other legal proceedings to which he referred arose out of a fire on a building site, which has resulted in litigation over a $40 million claim. Canon ceased trading after the fire, and one inference available is that the cessation of trading by Canon is tactical and somehow relates to the litigation over the $40 million claim. In cross-examination Mr Burke said that Canon had not ceased to exist, it had just done no work since the fire in September 2021.

  10. Mr Burke annexed copies of the financial statements of Canon for the tax year 2022 to his affidavit. These raised more questions than they answered. Mr Burke could provide no explanation for $1.8 million in loans made to Mr Burke personally and to two other Canon companies which he controls. Nor could he explain the $1.2 million owed by three entities with which he is associated. Mr Burke said that he delegated such things to his accountant.

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

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

Consideration

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

Objective Seriousness of the Offence

  1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: 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].

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

  3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

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

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

  3. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: 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.

  4. 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.”

  1. Further at [42] his Honour continued:

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

  1. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

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

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

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

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

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

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

  6. There were serious injuries caused to Mr Irwin by the fall.

  7. The maximum penalty for the offence is a fine of $1,766,130, which reflects the legislature’s view of the seriousness of the offence.

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

  1. I find that the level of culpability of Canon is in the mid range.

Deterrence

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

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

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

Aggravating Factors

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

Mitigating Factors

  1. Canon has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

  2. Canon is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

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

  4. Canon has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

  5. Canon 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 Irwin was caused by its actions.

  6. Canon 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 Canon a 25% discount for an early plea.

  7. Canon gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

  1. I am required to have regard to s 6 of the Fines Act 1996 (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.

  2. 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.”

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

Costs

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

Penalty

  1. My orders are:

  1. Canon Roofing Solutions Pty Ltd is convicted.

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

  3. Order Canon Roofing Solutions Pty Ltd to pay a fine of $300,000.

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

  5. Order Canon Roofing Solutions Pty Ltd to pay the prosecutor’s costs.

Decision last updated: 03 November 2023

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Cases Cited

15

Statutory Material Cited

4

Baumer v R [1988] HCA 67
Baumer v R [1988] HCA 67
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37