SafeWork NSW v Canon Roofing Solutions Pty Ltd - [2023] NSWDC 467

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWDC 467
Decision Date: 03 November 2023

CaseChat Overview and Summary

SafeWork NSW initiated proceedings against Canon Roofing Solutions Pty Ltd in the Local Court of New South Wales following an incident where a worker fell through an unsecured roof sheet, resulting in serious injury. The prosecution argued that the company had failed in its duty under work health and safety laws by not securing the roof sheet with screws, not conducting an adequate site-specific risk assessment, and not developing, implementing, and enforcing a Safe Work Method Statement. Additionally, the company did not provide appropriate information, training, and instruction to its workers.

The central legal issues before the court were the assessment of the objective seriousness of the offence, the consideration of mitigating and aggravating factors, and the determination of an appropriate penalty. The court had to balance the need for general and specific deterrence with the company’s capacity to pay. The company pleaded guilty, which led to a reduction in the fine.

In determining the penalty, the court considered the gravity of the offence, which involved a significant risk of death or serious injury. The mitigating factor of the early guilty plea was weighed against the lack of adequate safety measures and the failure to provide necessary training. The court imposed a fine of $400,000, reduced by 25% to reflect the early plea, resulting in a $300,000 fine. The court also ordered that 50% of the fine be paid to the prosecutor and that Canon Roofing Solutions Pty Ltd cover the prosecutor’s costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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…