SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd

[2022] NSWDC 175

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175

Hearing dates:

29 April 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $180,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $135,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $29,000.00.

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 – parity - appropriate sentence – strong subjective case – capacity to pay

OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

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

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

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

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

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

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

SafeWork NSW v Lewin Roofing Pty Ltd [2021] NSWDC 707

SafeWork NSW v Poletti Corporation [2019] NSWDC 491

Veen v R (No. 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:

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

Fall Through Skylights and Plastic Roof Sheeting Safety Alert

Safe Work on Roofs Information Sheet, January 2016

SafeWork Australia’s Information Sheet for Safe Work on Roofs

SafeWork NSW’s Managing the Risks of Falls Code of Practice April 2016

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Carricks Plumbing and Gasfitting Pty Ltd (Defendant)

Representation:

Counsel:
Mr N Read (for the Prosecutor)
Mr R Coffey (for the Defendant)

Solicitors:
Mr J O’Connell, Department of Customer Service (for the Prosecutor)
Mr B Kritharas, Sparke Helmore (for the Defendant)

File Number(s):

2020/349420

Judgment

1. On 28 February 2022, Carricks Plumbing and Gasfitting Pty Ltd (‘the defendant’) entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’), being a person conducting a business or undertaking who had a duty under s 19(1) of the Act, to ensure, so far as 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, including Mr Thomas Sheather (‘Mr Sheather’) and Mr Josh Henry (‘Mr Henry’), to a risk of death or serious injury.

BACKGROUND

2. The defendant conducted a business or undertaking of roofing and plumbing works. The defendant was a franchisee of O’Brien Glass Industries Pty Ltd and traded under the name O’Brien Plumbing Port Macquarie and Laser Plumbing Port Macquarie. At the relevant time, the defendant employed approximately 23 workers.

3. Lewin Roofing Pty Ltd (‘Lewin’) traded as JRL City Roofing and conducted a business or undertaking of roofing and plumbing work for residential and commercial buildings. Lewin employed three workers at the time of the incident.

4. In or around February 2018, the defendant was engaged to undertake roof plumbing works at a residential apartment building at 19-21 Burrawan Street, Port Macquarie (‘site’). The defendant engaged Lewin as a subcontractor to assist with the works at the site, which included replacing metal roof sheeting, parapet capping, and replacing box gutters and downpipes.

5. The site was three stories high with four polycarbonate skylights in two sets on either side of the roof apex. Each skylight measured approximately 1.65m x 1.050m and was raised approximately 100mm above the roof line.

6. Before the works commenced, Mr Ben Carrick (‘Mr Carrick’), Mr Jamie Lewin (‘Mr Lewin’) and Mr Daniel Kennedy (‘Mr Kennedy’) discussed the scope of work, the work method to be implemented, and general safety requirements. It was agreed that harnesses would be used to control the risk of falls at the site, and that Lewin workers would replace the roofing sheets while the defendant’s workers would install the box gutters and flashings.

7. The defendant commenced work at the site on or around 4 March 2019. It undertook preparatory work and coordinated the delivery of materials, including roofing sheets stacked on various parts of the roof by crane.

8. Prior to and on 18 March 2019, no edge protection had been installed around the perimeter of the building, nor was any protection provided for the four skylights, such as covers or guardrails. Scaffolding had been erected adjacent to a box gutter that was to be replaced on the building’s eastern face.

9. On 18 March 2019, the defendant’s workers on site were:

1. Mr Kennedy;

2. Mr Simon Fitzgerald (‘Mr Fitzgerald’), a supervisor;

3. Mr Harley Hine (‘Mr Hine’), a roof plumbing apprentice; and

4. Mr Harrison Kingman (‘Mr Kingman’).

10. Lewin first attended the site on 18 March 2019. Its employees were Mr Lewin, Mr Jeremy McLeod (‘Mr McLeod’), Mr Sheather and Mr Henry.

11. Mr Lewin and Mr McLeod inspected the roof and had a pre-start meeting with the Lewin workers about how work was to be undertaken, including the risk of falling over the building’s edge and instructing workers to use harnesses. The hazard of the unprotected skylights was not identified or discussed. There was no discussion about which anchor points the workers were to use, nor how roof sheets were to be carried using harnesses that needed two hands to operate.

12. Mr Kennedy led a tool box talk for all the workers. He discussed the work tasks and provided an overview of the defendant’s Safe Work Method Statement (‘SWMS’) for installing new metal roofs. The workers signed the SWMS and Mr Lewin left the site shortly afterwards.

13. The workers accessed the roof via a manhole and attached their harnesses to various anchor points. Mr Fitzgerald, Mr Harrison and Mr Hine were working on the box gutter in the north-western corner of the building. The Lewin workers commenced stripping roof sheeting at the south-eastern corner of the building.

14. Mr McLeod directed Mr Sheather and Mr Henry to collect new roof sheets that were approximately 18m long. To reach the sheets, they had to walk about 20m past the unprotected skylights and other materials stacked on the roof.

15. Mr Sheather and Mr Henry’s harness ropes were not of sufficient length to reach the stack of roof sheets. They both disconnected their harnesses from the anchor points to collect the roof sheet and carried it using both hands. The sheet was positioned above their heads, and this process continued.

16. As Mr Sheather and Mr Henry were carrying a roof sheet, Mr Sheather tripped and fell approximately 6.5m through the skylight onto an internal stair landing.

17. Mr Sheather suffered serious injuries as a result of the accident, including three vertebrae fractures in his neck, subdural/extradural haematoma to the brain, a fractured skull, and T2 endplate fractures. Mr Sheather had no capacity for employment as at 30 January 2020.

RELEVANT LEGAL OBLIGATIONS & GUIDANCE MATERIALS

18. Clause 78 of the Work Health and Safety Regulation 2011 (‘WHS Regulation’) provides that duty holders must manage the safety risks associated with a fall, including openings through which a person could fall. Clause 79 sets out the specific requirements to minimise the risk of a fall, which includes:

1. Providing a fall prevention device if reasonably practicable to do so; or

2. If not reasonably practicable to do so, providing a work positioning system; or

3. If not reasonably practicably to comply with either of the above, providing a fall arrest system as far as is reasonably practicable, which includes edge protection and covers (cl 79(5) WHS Regulation).

19. The work carried out was ‘high risk construction work’ within the meaning of clause 291 of the WHS Regulation. As such, the duty holders were required to prepare a SWMS for the work that specify hazards relating to the high-risk construction work and risks to health and safety associated with those hazards, describe the measures to be implemented to control the risks, and describe how the control measures will be implemented, monitored, and reviewed (clause 291(3) of the WHS Regulation).

20. An extensive amount of additional guidance material was available to the defendant at the time of the incident, including SafeWork NSW’s Managing the Risks of Falls Code of Practice April 2016, Safe Work on Roofs Information Sheet, January 2016, and Fall Through Skylights and Plastic Roof Sheeting Safety Alert. These are described at [34]–[36] of the Agreed Statement of Facts.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

21. The defendant was the head contractor for the work and its duty included ensuring the provision and maintenance of a work environment without risks to health and safety as far as was reasonably practicable, and the provision and maintenance of safe systems of work. The work to be undertaken on the roof was ‘high risk construction work’ because it involved a risk of a person falling more than 2m, per s 291(a) of the WHS Regulation.

22. The defendant developed a SWMS for the task of the metal roof installation, which was generic and did not address the site-specific hazard of a fall through the skylight nor specify any control measures for it. The SWMS identified the main hazards as slips, trips, and falls, and working at heights. It identified that the risk of falls from heights was likely to happen with major consequences.

23. For the task of stacking and securing of materials, the SWMS identified the risk of a fall and provided the following controls:

‘Training in working at heights, all workers to have the correct footwear for walking on the roof … use a fall arrest system, scaffolding or edge protection as a safety barrier, always remain behind guardrails, always walk on solid structure – e.g. purlins or roof sheet, never the wire netting; where possible, remain in EWP to conduct work…’

24. The defendant did not implement the most effective control measures to manage the risk of falls, including falling through the skylights. They were not protected by a fall prevention device, such as edge protection or a cover. The roof sheets were approximately 18m long and needed to be carried with two hands. Harnesses were not suitable for the task of carrying roof sheets as harness levers had to be operated with one hand to move around the roof. This meant that the workers would have no free hands to carry the roof sheets.

STEPS TAKEN AFTER THE INCIDENT

25. After the incident, the defendant designed and installed plywood box coverings to fit the skylights, which were painted pink and marked ‘Danger – Void Below’. It also engaged a scaffolding company, which erected scaffolding around the building to effectively manage the risk of a fall from the edge.

26. The defendant reviewed and modified its SWMS to include site-specific hazards and controls, requiring a pre-start inspection to ensure that appropriate height safety controls are in place, including covering skylights. Workers are always to be harnessed when installing safety mesh and timber boxes to the skylights.

27. The defendant reviewed and undertook a gap analysis of its work health and safety systems, provided training to managers and supervisors on risk assessment and identification, and developed and implemented new SWMS covering a range of its work.

SENTENCING

28. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.

29. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

30. 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.

31. 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 judgement without any attempt to state precisely how any given factor has influenced the judgement.’

OBJECTIVE SERIOUSNESS OF THE OFFENCE

32. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

33. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5. 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 at [31].

34. 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 v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.

35. 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 (‘Capral Aluminium’) at [81].

36. 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.

37. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

‘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.’

38. 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.’

39. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

40. 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).

41. The defendant’s duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

42. The following matters are relevant to determining the culpability of the defendant:

1. The risk of a fall through one of the four skylights on the roof was an obvious and foreseeable risk. The fragile skylight material and dimensions of the skylights themselves (1.65m x 1.050m) clearly indicated a risk to persons working on the roof that needed to be managed, so far as was reasonably practicable;

2. The potential consequences of the risk were catastrophic and included a risk of death. The distance from the skylight through which Mr Sheather fell and the internal stairwell below was approximately 6.5m. The defendant’s SWMS assessed the risk of falls from height during the task of installing insulation and roof sheets as being ‘likely to happen with major consequences, such as extensive injuries’;

3. An adequate risk assessment would have identified the gravity of the risk and the need to implement controls and protection against it;

4. The defendant gave inadequate consideration to the risk and how it ought to have been managed. The defendant resolved to use harnesses as a means to control the risk of falls. Harnesses do not prevent a person falling and are only to be used where it is not practicable to provide a fall prevention device;

5. The defendant did not consider how the particular tasks were to be carried out on the roof, such as carrying roof sheets which could not be practically undertaken using harnesses;

6. As a specialist roofing business, the defendant ought to have reasonably known about the risk and the ways of managing it. There was practical guidance material available to the defendant on how the risk ought to have been managed, including the Code of Practice Managing the Risk of Falls at Workplaces, April 2016 (Falls Code) and SafeWork Australia’s Information Sheet for Safe Work on Roofs. The defendant’s pre-incident SWMS referred to the WHS Regulation and relevant guidance material;

1. The likelihood of the risk materialising was reasonably high in circumstances where it was not adequately controlled. There was also a substantial chance that workers could trip when carrying a roof sheet given the uneven surface of the roof and the stacks of materials placed upon it. The risk manifested a very short period of time after the workers commenced working on the roof;

2. There were simple, straightforward steps which could and should have been taken to avoid the risk. There was little, if no, costs associated with the steps. The steps taken by the defendant after the incident were not complex or burdensome; and

3. The extent of Mr Sheather’s injuries were significant. As at 30 January 2020 Mr Sheather had no capacity for work, some 10 months after the accident. He was only 23 years of age at the time of the accident.

43. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].

44. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA 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 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.’

45. 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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

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

• 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: Ibid [34];

• The availability of steps to eliminate or minimise the risk: Ibid [34];

• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] & [53];

• Whether the risk was known to or ought reasonably to have been known to or identified by the offender;

• Whether the risk was an obvious or clear one; and

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

DETERRENCE

47. 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.

48. 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).

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

50. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 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.’

51. 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 working in an industry that necessitates the need to work at height and simultaneously carry heavy roof sheets.

52. 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 Act very seriously. 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.

53. The risks associated with falls through fragile roof surfaces, skylight and unguarded penetrations are extremely well-known and obvious. The work being performed was ‘high risk work’ and an appropriate SWMS was required—the defendant had a SWMS but it did not identify the risk of falling through a skylight.

54. 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.

55. The defendant had in place a WHS Management System and had engaged a WHS consultant, Anscot Safety Solutions, to assist in developing its WHS management system. This was based on a risk assessment undertaking in consultation with the defendant (Exhibit 1 at [15]). Mr Carrick further deposes in Exhibit 1 the following:

‘[16]   Prior to a new worker starting employment with Carricks, an induction checklist was completed to confirm and verify the workers’ level of training and obtain copies of relevant licences, certificates and competencies.

1. All Carricks employees were required to have working from heights training. If an employee did not have the right training needed, they were not allowed to work on a project until they had completed the training. In these circumstances, Carricks would arrange and pay for the employee to undertake that training through an external provider. Some businesses in the industry place the onus on the workers to identify, book in and pay for the additional training. However, I believe that providing the time and funding for the workers to complete this training increases the workers’ commitment to the business and, most importantly, their commitment to safety.

2. Carricks had a training register and a record of the completed training was made on the register using a soft wear program called SimPro. The expiry dates were also entered on the system so that when the training or specified competency was almost expired, a notification alerted the company so that the training could be undertaken or updated before it expired.’

   56. In the above quoted [17], where it deposes that the defendant arranges and pays for additional training for employees, gives me some comfort as to the likelihood of the defendant re-offending, which I think is low.

   57. I accept that this incident was as a consequence of an inadequate system which did not properly address the risks with regard to the use of harnesses, the need for fall protection, and the fragile nature of the skylights. I do, however, accept that this incident has acted as a wake-up call for the defendant, and again, I think that the risk of re-offending is low.

   58. I note that the defendant continues to perform the same work as it did when the incident occurred, however, I accept that the defendant has changed its ways.

   59. I accept that the prospects of rehabilitation of the defendant are good, but the need for an element of specific deterrence is still necessary in these circumstances.

AGGRAVATING FACTORS

60. The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a 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)

61. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Sheather was tragically, seriously injured and has been left with significant impairments that will no doubt trouble him for the rest of his life. He may never return to the workforce. Mr Henry was also exposed to the risk, but fortunately was not injured.

MITIGATING FACTORS

62. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.

63. The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.

64. The defendant entered a plea of guilty on 9 August 2021, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.

65. The defendant read the affidavit of Ben William Carrick affirmed 14 April 2022 which became Exhibit 1. He was not required for cross-examination. I note, however, that Mr Carrick and his wife, Leah who also works in the business, were in Court for the sentence proceedings, having travelled from Port Macquarie. I accept that this is a clear indication that they have taken the matter very seriously and this augers well for rehabilitation.

66. I accept that on the basis of what is contained in the affidavit, which is unchallenged, that the defendant is of good corporate character as evidenced by the assistance given to charity and individuals from time to time: s21a(3)(F) of the Sentencing Act.

67. Prior to the incident, the defendant did have in place a WHS management system, which required all of the defendant’s workers to have training at working from heights. If they did not have the right training, they were not permitted to work on a project until the training and/or qualification is obtained. The defendant would pay for the training of each worker.

68. I accept that the defendant’s position is that finding and providing time during normal working hours for this kind of training to be completed provided significant returns to the defendant in terms of greater commitment to safety in the operation of the business.

69. The work that was being done on the day of the incident was certainly ‘high risk work’, and because of the nature of the work, a SWMS identifying the high risk work was required.

70. The crux of the issue was that the risk assessment performed was inadequate and the defendant accepts this and agrees their systems were just not good enough.

71. I accept that this incident has acted as a ‘wake up call’ for the defendant and that the defendant’s increased vigilance as to safety means that the prospects of rehabilitation are good. The demonstrated changes are found at [41] of Exhibit 1.

72. Paragraph [54] of the Affidavit of Ben William Carrick affirmed 14 April 2022 (Exhibit 1) satisfies me that the defendant has shown insight into the offending and recognition that this incident will have a life-long effect on Mr Sheather. It also demonstrates the defendant’s contrition and remorse. The incident has also had an impact on Mr Carrick who has sought medical assistance and is being treated for an adrenal adenoma.

73. Further, I note that the defendant has been providing assistance to Mr Sheather since the incident even though he is not an employee of the defendant. Mr Sheather has been offered employment by the defendant when he is able to return to work (Affidavit of Ben William Carrick affirmed 14 April 2022, paragraph [44], Exhibit 1).

74. Submissions have been made by the parties with regard to the size of the business and its capacity to pay a fine. The prosecution asserts that the defendant is a larger company than Lewin who I have previously sentenced with regard to his incident.

75. The defendant submits it is a small family company and although it is a franchise of O’Brien Plumbing it is really just an operation run by Mr & Mrs Carrick.

76. The defendant does not, however, make an application under s 6 of the Fines Act, but does provide some financial documentation as attached to Exhibit 1. The defendant has been very frank and open about its financial circumstances and I accept that the imposition of a significant fine would be deleterious to the viability of the company. On that basis I propose to afford the defendant some leniency.

PARITY

77. The issue of parity has also been ventilated, as I sentenced Lewin on 21 December 2021; SafeWork NSW v Lewin Roofing Pty Ltd [2021] NSWDC 707. The prosecutor, very fairly, submits there is nothing before me to indicate that this defendant should be treated as having engaged in a more serious breach than Lewin, and in fact they should be treated in a similar fashion. The defendant does not demur from that submission, with which I agree.

78. I note that the prosecutor concedes that this is a strong subjective case. For reasons as detailed above and noting that the defendant is a small family company, that operates and employs a few workers in a small rural community, the chance of the defendant re-offending is low and the prospects of rehabilitation are good.

79. I also accept that the incident has had a significant impact on Mr Carrick and has weighed heavily upon him.

80. The defendant entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.

81. The prosecutor has very fairly conceded, and I accept that this is a very strong subjective case and propose to afford the defendant leniency on that basis.

82. The appropriate fine for the defendant is $180,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

83. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $180,000.00, and that will be reduced by 25% to reflect a plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $135,000.00.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $29,000.00.

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Amendments

31 May 2022 - Heading "Parties": "Lewin Roofing Pty Ltd" amended to read "Carricks Plumbing and Gasfitting Pty Ltd".

Paragraph 79: The words "Mr Lewin" amended to read "Mr Carrick".

Paragraph 80: Previous paragraph 80 commencing with the words "Paragraph 101 of the affidavit demonstrates ..." deleted.

Paragraph 81: Previous paragraph 81 commencing with the words "I also note that ..." deleted.

Previous paragraph 82, now becomes paragraph 80.

Previous paragraph 83, now becomes paragraph 81.

Previous paragraph 84, now becomes paragraph 82.

Previous paragraph 85, now becomes paragraph 83.

Decision last updated: 31 May 2022