SafeWork NSW v Dukes Painting Services Pty Ltd

[2025] NSWIC 15

Industrial Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Dukes Painting Services Pty Ltd [2025] NSWIC 15

Hearing dates:

21 August 2025

Date of orders:

1 October 2025

Decision date:

01 October 2025

Before:

Taylor J, President

Decision:

1. I convict Dukes Painting Services Pty Ltd of the offence as charged.

2. I impose a fine of $105,000.

3. Dukes Painting Services Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

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

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Offences — Category 3 — Risk of falling from a mobile elevated working platform

SENTENCING — Relevant factors on sentence — All facts, other than disputed facts, relied on by the prosecutor should be contained in agreed statement of facts — Whether utilitarian value of guilty plea is reduced because the court required to engage in a disputed fact hearing — Objective seriousness of the offence — Top of the lower range of objective seriousness

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)–(3), 22

Fines Act 1996 (NSW), ss 6, 122(2)

Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 33, 43(2)

Work Health and Safety Regulation 2017

Cases Cited:

R v AB [2011] NSWCCA 229

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

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

SafeWork NSW v BSA Ltd (No 3) [2023] NSWDC 417

SafeWork NSW v Duralina Pty Ltd; SafeWork NSW v Mill HR Pty Ltd [2025] NSWDC 253

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

398

SafeWork NSW v Kayrouz Constructions Pty Ltd (No 2) [2021] NSWDC 38

SafeWork NSW v Menai Civil Contractors [2025] NSWIC 8

Texts Cited:

Australian Standard AS 2550.10-2006 “Cranes, hoists and winches – Safe use”

SafeWork NSW, “Code of Practice: Managing the Risks of Falls at Workplaces” (August 2019)

SafeWork NSW, “Code of Practice: Managing the Risks of Plant in the Workplace” (August 2019)

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Dukes Painting Services Pty Ltd (Offender)

Representation:

Counsel:
E Aitken (Prosecutor)
M Shume (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Kingston Reid (Offender)

File Number(s):

2024/292557

JUDGMENT

1. On 13 August 2022 Mr Kheirury was painting the exterior of an apartment block, using a mobile elevated working platform (MEWP). It had a boom that could lift him more than 11m above the ground allowing him to paint the balcony and eaves of the four-storey building.

2. Dukes Painting Services Pty Ltd (Dukes) had hired Mr Kheirury and supplied him with the MEWP without checking whether he was licenced to operate it (he was not). It failed to instruct him that he was not allowed to extend the boom with its platform unless the MEWP’s outriggers were in place. A pre-start check of the MEWP was not completed that morning. Such a pre-start check would have identified that on that day the MEWP had a malfunctioning interlock, which meant its boom could be extended by Mr Kheirury without the outriggers being in place. Extending the boom of the MEWP without the outriggers in place could cause the MEWP to tip over with the result that anyone on the platform would fall from height. The result was that on that day Mr Kheirury was placed at risk of falling from height.

3. Dukes appeared for sentence after pleading guilty to an offence charged in a Second Amended Summons filed on 16 June 2025, that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it had failed to comply with that duty contrary to s 33 of the WHS Act.

4. The risk particularised at paragraph 10 of Annexure A to the Second Amended Summons is as follows:

“The risk was of Mr Kheirury falling from a height while undertaking work on and from the MEWP at the Site.”

5. By its plea of guilty, Dukes accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“a) Prohibiting workers who were not licenced to operate the MEWP from operating it;

b) Including an express prohibition in the ‘Online Induction’ presentation and/or the ‘SWMS-001-Painting External’ and/or the ‘Safe Work Method Statement – EWP’ on extending the boom and platform of the MEWP while the outriggers were stowed; and

c) Verifying that an adequate pre-start check of the MEWP was undertaken in accordance with the manufacturer’s instructions, including but not limited to checking that the interlock and alarm were functioning properly.”

6. The maximum penalty for this offence at the relevant time was a fine of 5,770 penalty units ($620,101.90).

The evidence

7. SafeWork NSW tendered an amended Agreed Statement of Facts (AF). The AF established the identity and role of the parties, described the MEWP, set out parts of relevant guidance materials, described the system of work in place prior to the offence and set out steps taken by Dukes after the incident to improve systems of work. It did not contain facts that set out what happened on the day in question.

8. In circumstances where the evidence in the AF was insufficient to establish all relevant facts, the Prosecutor tendered, without objection, a substantial bundle containing, in addition to the AF, redacted written statements of a SafeWork Inspector and a witness, a redacted portion of a record of interview with a further witness, a technical report describing the MEWP, various photographs, induction training documents, safe work method statements (SWMS), extracts from the MEWP logbook, and records of licences and training held by relevant workers. At the hearing the Prosecutor tendered a further page from a record of an interview with a witness.

9. Dukes submitted that the Court could accept the Prosecutor’s submissions as to the factual findings the Court could make on the basis of that tendered material. Contrary to a submission made by Dukes that did not mean the Court did not have to engage in a disputed fact hearing.

10. Whenever there are any facts that are not agreed that need to be established in a sentence hearing, the court must then engage in a disputed fact hearing. Where that occurs, and the prosecutor establishes the facts in dispute, the court may find that the utilitarian value of the plea is reduced and apply a reduced discount on penalty. [1]

    1. See R v AB [2011] NSWCCA 229 at [32]–[33], quoted at SafeWork NSW v Kayrouz Constructions Pty Ltd (No 2) [2021] NSWDC 38 at [228]. See also SafeWork NSW v BSA Ltd (No 3) [2023] NSWDC 417 at [92](5).

11. Dukes explained that its insurer had “refused to permit” Dukes to admit various facts going to what occurred on the day in question, which was why the Prosecutor was required to include large amounts of evidence in the prosecution bundle.

12. In SafeWork NSW v Menai Civil Contractors, Paingakulam J set out what the Court expects of parties appearing at a sentencing hearing in circumstances where there are no relevant facts in dispute. [2] In short the Court expects that other than disputed facts, all facts relied upon by the prosecutor will be contained in the agreed statement of facts, supplemented only by visual aids, such as photos, diagrams or videos. There is no need for the agreed facts to be supplemented by records of interview or lengthy documents that do no more than confirm facts that are not disputed.

    2. [2025] NSWIC 8 at [8]–[9].

13. After an initial agreed statement of facts was filed, prior to the hearing the Court raised with the parties that key facts which were necessary to both convict and to determine an appropriate sentence were neither admitted nor apparent on the evidence proposed to be relied upon. That led the prosecutor to ultimately tender the AF which contained the following paragraph not in the initial document:

“On 13 August 2022 there was a risk of Mr Kheirury falling from a height while undertaking work on and from the MEWP at the Site:

i.    Mr Kheirury was not prohibited by the Defendant from operating the MEWP when he did not hold the proper licence to operate it,

ii.    Whilst the Defendant had an induction presentation (which Mr Kheirury completed) a SWMS-001-Painting External and a Safe Work Method Statement – EWP none of them had an express prohibition prohibiting the boom being extended while the outriggers were stowed, and

iii.    No verification was done confirming that an adequate pre-start check of the MEWP was undertaken in accordance with the manufacturer’s instructions, including checking that the interlock and alarm were functioning properly.”

14. Further, at the outset of the hearing Dukes admitted further facts, including:

“a.    the Defendant provided Mr Kheirury with the MEWP;

b.    Mr Kheirury and ‘Richii’ or ‘Richii Kheirury’ are the same person;

c.    Mr Kheirury was required to use the MEWP, noting that the word ‘required’ in this context should be taken to mean that it was necessary for Mr Kheirury to use the MEWP to complete the works that the Defendant had engaged him to undertake;”

15. Notwithstanding those agreed facts, there remained facts that the Court has had to find to be established by having to consider large amounts of tendered evidence rather than on the basis of agreed facts. In those circumstances the question arises as to whether to reduce the discount that would otherwise be applied because the utilitarian value of the plea was diminished by the need to conduct a disputed fact hearing. I have determined not to reduce the discount in this particular case given:

1. the steps Dukes took, albeit late and after questions raised by the Court, to admit certain key facts;

2. Dukes’ acceptance that the Court could otherwise find facts as submitted by the Prosecutor;

3. that while the Court had to take a number of steps in order to have relevant facts before it, ultimately the hearing was conducted in half a day; and

4. importantly, the Prosecutor’s submission that in those circumstances the value of the plea had not been diminished.

16. While that is the outcome in this particular case the Court takes this opportunity to reiterate that a failure to ensure all relevant facts, other than disputed facts, are contained in an agreed statement of facts, supplemented only by visual aids, may well have consequences, including as to the discount on sentence and costs. The Court should not need to be given bundles of documents or statements of evidence to establish facts which are not reflected in the AF but which are not in dispute. Such a course of action gives rise to unnecessary delays and inefficiencies and adds to the costs incurred. As occurred in this case, where a prosecutor proceeds to file evidence to establish facts that are not disputed the Court may well ask the parties why the scheduled defended hearing ought not to be vacated until such time as all relevant facts are reduced to an agreed statement of facts.

Factual findings

17. Having reviewed the evidence I am satisfied that the facts for which the Prosecutor contends in its written submissions at [6]–[19] are proven. I do not repeat them all, but instead set out the following key factual findings upon which I convict and sentence Dukes:

1. Mr Kheirury was contracted by Dukes to paint the interior and exterior of a four-storey block of apartments at 27 Illawarra Street, Allawah, NSW.

2. Dukes supplied him with a MEWP that had a boom of more than 11m to use to paint the exterior, that he used on the date of the offence, 13 August 2022.

3. In order to operate the MEWP safely, its boom, that lifts the working platform, should only be extended after the outriggers are put out, so they can stabilise the MEWP and prevent it from tipping over.

4. The MEWP had an “interlock” function that ought to have prevented the boom from being extended if the outriggers were not extended, but that safety function was not operational that day.

5. Mr Kheirury was trained on operating an elevated work platform but not licensed to operate a MEWP with a boom of more than 11m.

6. Dukes’ project manager for the site, Mr Barry, failed to check whether Mr Kheirury was licensed to operate the MEWP.

7. As a result, Dukes had no reason to assume that Mr Kheirury had knowledge of the specific safety issues that arise when using a MEWP of that size.

8. Mr Barry spent 15–20 minutes showing Mr Kheirury how to use the MEWP, including how to set up the outriggers. Mr Barry, however, failed to instruct Mr Kheirury that the platform was not to be raised if the outriggers were not extended.

9. Neither the induction that Mr Kherirury completed, nor the SWMS for the work that he saw and signed, contained a prohibition on extending the boom while the outriggers were stowed.

10. Dukes failed to verify that there was an adequate pre-start check of the MEWP conducted. Such a pre-start check would have included a check as to whether the interlock was functioning. The physical logbook recording pre-start checks contained no entry for the day in question.

18. Consistent with the nature of the s 33 charge, there was no evidence put before me that the pleaded risk manifested. In particular, there was no evidence put before me that the MEWP in fact tipped over and that Mr Kheirury fell and was injured. Such evidence, if available, would have established a more serious charge and given rise to a much more significant penalty.

Legal obligations and guidance material

19. Subsection 43(2) of the WHS Act prohibits a person conducting a business or undertaking from directing or allowing a worker to carry out work at a workplace, in circumstances where that work is required by the Work Health and Safety Regulation 2017 (Regulations) to be carried out by a person authorised by a licence as set out in the Regulations and that worker is not so authorised. Schedule 4 of the Regulations requires a person to hold a high-risk work licence to operate a boom-type elevating work platform (EWP) which has a boom that can extend to a length of 11m. [3]

    3. Work Health and Safety Regulation 2017 (NSW), Schedule 4, Table 4.1, item 21.

20. There was ample guidance material available to Dukes on 13 August 2022, including:

1. the “Danger” and “Warning” labels on the front rail of the platform of the MEWP, which stated that outriggers must be properly extended before the boom is used as serious injury could result if they were not;

2. “Nifty SD170 (SD50) – Operating & Safety Instructions”, particularly “Section 4.2 – Setting up procedures” which included the warning that “Failure to deploy the outriggers correctly could result in death or serious injury”;

3. “Code of Practice: Managing the Risks of Falls at Workplaces”, published by SafeWork on August 2019, which at page 31 noted relevant risk control measures that should be taken when using EWPs, including ensuring that workers operating boom-type EWPs with a boom length of 11 metres or more are licenced;

4. “Code of Practice: Managing the Risks of Plant in the Workplace”, published by SafeWork NSW on August 2019, particularly sections 1.4, 3.3, and 3.7, which address the importance of ensuring appropriate information, training, instruction, supervision, and licensing for workers using a plant; taking reasonable steps to ensure that safety features, warning devices, guarding, operational controls, and emergency stops are used according to instructions and information provided; and managing risks to health and safety; and

5. Australian Standard AS 2550.10-2006 “Cranes, hoists and winches – Safe use”, particularly Part 10 on MEWPs, which stated that MEWPs fitted with outriggers should be located in a manner that allows for the outriggers to be extended, that pre-operational inspections should be carried out prior to the working shift and the results entered into the logbook, and that a malfunctioning MEWP should be corrected prior to being returned to service.

Systems of work prior to the incident

21. Before the offence, Dukes implemented the following system of work:

1. The MEWP was equipped with outriggers which were interlocked to prevent the platform being raised unless the outriggers were extended and an alarm that sounded if the boom and platform were raised. On the date of the offence the alarm was operational but the interlock was not, which meant the platform could be raised without the outriggers extended, albeit an alarm would be audible if that occurred.

2. Dukes engaged STM Equipment Pty Ltd to service and maintain the MEWP every 3 months. The MEWP had been serviced on 30 May 2022 as part of the periodic inspection and was due to be inspected at the end of August 2022.

3. Prior to commencing work, subcontractors were required to complete a computer-based company induction, which did not deal with the use of the MEWP. Mr Kheirury completed the induction but Mr Ebrahimi, a subcontractor engaged by Mr Kheirury under the business name of Vivid Glow, did not.

4. Dukes had an “Elevated Work Platform Competency Assessment” which was intended to be used before a worker commenced use of the EWP and required that the worker demonstrate the use of outriggers. This was not completed in respect of Mr Kheirury.

5. Project Managers would from time to time undertake Toolbox Talks with workers at project sites, which did not occur at the relevant worksite.

6. A Nifty operator manual, a yellow logbook identifying the daily safety checks to be taken each day and a pre-start checklist document were located in the MEWP. Neither the logbook nor checklist were filled out on 13 August 2022.

7. Personal protective equipment and a harness were provided.

8. Mr Kheirury was provided with SWMS for Internal Painting and External Painting. Neither document identified the interlock or outriggers as available safety controls.

Systems of work after the incident

22. After the offence, Dukes undertook:

1. the provision of toolbox talks and safety meetings with its team regarding safety and working at heights and direct staff refresher training about working at heights;

2. a review of all its workers’ licences and training, methods for completing the daily checklist, methods for completing SWMS, training for workers on the completion of SWMS and daily checklists, training on the use of EWPs for all its Project Managers, and EWP competency process;

3. to send out memorandums about training requirements and recommendations to workers;

4. ongoing weekly safety discussions with its Project Managers.

Offender’s case on sentence

23. Dukes read and relied on the affidavit of Mr Paul Williams, the Managing Director of Dukes. The following is a summary of his evidence.

About Dukes

24. Dukes is a painting business. It employed 22 staff as at August 2022. As of August 2025, it has 18 employees and 3 contractors who provide the business with administrative support. At any one time, it may engage up to 20 contractors across its projects.

25. Dukes’ Operations Team allocates projects to Project Managers, who are supported by Coordinators and the WHS team to oversee sites, manage subcontractors, and ensure that works are completed in a safe, competent and timely way.

26. Dukes is an active member of several industry groups, including Australian Concrete Repair Association, Master Builders Association, Master Painters Association and Engineers Australia. Peter Dukino, current Director and Secretary of Dukes, previously served as President of the Master Painters Association.

Systems of work prior to August 2022

27. Prior to August 2022, Dukes operated under a WHS management system that was developed and maintained in partnership with an external WHS consultancy, for the purpose of application across operational sites.

28. The components of the system included:

1. documents and processes, including WHS policies and procedures, SWMS, risk assessment templates, daily pre-start checklists, plant and equipment inspection forms, and checklists for the use of equipment;

2. training and induction materials, relating to safety for employees and subcontractors and working at heights;

1. supervision and site monitoring, including regular WHS inspections, providing supervisory staff with access to WHS documentation, and requiring EWP pre-start checks as part of daily operations;

2. consultation and communication, including toolbox talks and communication about safety expectations and WHS policies to employees and contractors;

3. reviews and auditing, including quarterly site audits and system reviews conducted by an independent external WHS consultant to identify areas for improvement and compliance with legislation; and

4. system accessibility, by making WHS documents and forms accessible to Dukes’ employees and contractors via Dukes’ digital platforms and the provision of physical copies of safety documentation.

Expression of remorse and contrition

29. Dukes, through Mr Williams’ affidavit, acknowledged the seriousness of its failure to comply with s 33 and the “lasting impact” of the offence on Mr Williams “personally and on the entire Dukes business”. Mr Williams noted that the breach had prompted Dukes to improve its safe work and risk management practices.

Systems of work after August 2022

30. Dukes has taken steps since August 2022 to address its admitted failures.

31. Relevant to the first particular, Dukes has taken steps to prohibit unlicensed operators from using the MEWP. It has introduced a prohibition against unlicenced workers from accessing EWPs and being given the codes to access the keys. This prohibition has been communicated to workers. It has also implemented a structured process to ensure that EWP operators hold current high risk work licences before operating such platforms. As part of their online induction, a worker uploads their licence, which is checked by the compliance officer to verify the date of issue and expiry, the licence type, the worker’s name, and the document’s legibility and completeness. The information is recorded in Dukes’ digital training register, and automated notifications are sent to Dukes prior to a licence’s expiry date.

32. Project Managers are required to check a subcontractor’s qualifications against project requirements prior to awarding a contract, manually record users’ licence details upon moving an EWP onto the site and prior to the EWP’s use, and physically check Dukes’ licence register and the onsite operators’ licence. Dukes undertakes regular checks to verify that the prohibition is being implemented, including by conducting randomised site spot checks and training sessions.

33. Relevant to the second particular, Dukes has included an express prohibition in its “Online Induction” presentation in respect of extending the boom and platform of the relevant MEWP while its outriggers are stowed. It has also created, with the assistance of an external WHS consultancy, specific SWMS relating to the use of EWPs, including the MEWP.

34. Relevant to the third particular, Dukes now verifies that an adequate pre-start check of the MEWP is undertaken. It checks that the interlock and alarm are functioning properly by requiring workers to complete and submit pre-start checklists, having its operation team review that the checklists have been completed, requiring that the EWP pre-start books are photographed each time the MEWP is used, and conducting monthly spot checks.

35. Mr Williams also gave evidence that Dukes has taken additional steps to improve safety at worksites.

Consideration

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

37. I have taken into account the maximum penalty for this offence. [4]

    4. Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

Objective seriousness

38. In determining objective seriousness, I apply the principles set out by Paingakulam J in SafeWork NSW v Menai Civil Contractors. [5]

    5. [2025] NSWIC 8 at [40]–[45].

39. SafeWork NSW submitted that this offence falls at the top end of the lower range of objective seriousness, having regard to the following factors:

1. The pleaded risk was foreseeable, as was acknowledged by Dukes’ own systems of work including its SWMS, online induction, and pre-start check in the yellow logbook for the MEWP.

2. Although the likelihood of the risk materialising was high, it was mitigated by the steps Dukes had already taken to address the risk of using the MEWP.

3. The potential consequences of the risk materialising were serious, including the risk of death.

4. The pleaded measures were simple and straightforward for Dukes to implement and would only have required it to amend and enforce its existing systems.

40. Dukes submitted that the offence fell into the lower range of objective seriousness, having regard to the following:

1. While the pleaded risk was foreseeable, it is a risk which can be reduced to a level accepted to comply with the WHS Act where an MEWP is operated in accordance with operating instructions.

2. Mr Kheirury was not a “vulnerable worker”, in that he did not have little or no training and he did not have language difficulties. [6]

3. The risk relates to one worker, one machine, at one time and at one place. [7]

4. Mr Kheirury prior to commencing work for Dukes had completed an online site induction in January 2022 and an onsite induction of the MEWP’s operation the day before the risk eventuated.

5. Dukes had a system in place to prevent persons operating MEWPs if they were not properly licenced, although it did not operate in the way it should have on the day the risk eventuated.

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

   7. SafeWork NSW v Duralina Pty Ltd; SafeWork NSW v Mill HR Pty Ltd [2025] NSWDC 253 at [72].

41. The Court accepts that Dukes, prior to the incident, was a company that took appropriate steps towards ensuring safety, notwithstanding that the admitted contravention occurred.

42. The gravamen of this offence is that Dukes gave Mr Kheirury a piece of potentially dangerous mobile equipment to use to work at a height of more than 11m without ensuring certain measures to address the risk of falling from height. The MEWP was at risk of tipping over if Mr Kheirury worked on the platform with the boom extended while the outriggers were not extended. That danger needed to be addressed by both mechanical and instructional means, including:

1. a functional interlock to prevent the boom being extended when the outriggers were stowed;

2. training of users as recognised by a licensing system; and

3. express instruction prohibiting users from extending the boom without the outriggers being extended.

43. Dukes failed to take the reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk set out at [5] above. As a result on 13 August 2022 there was a risk that Mr Kheirury would fall from a height.

44. That risk is one I find to be serious. I accept, however, that in all the circumstances, including the steps taken by Dukes before the incident to ensure safety, the offence falls in the lower range of seriousness, albeit at the top of that range.

Deterrence

45. The penalty imposed in relation to this offence must provide for general deterrence. The risk of a fall from height is an extremely common risk in painting and other building maintenance works. While lifting mechanisms, such as a MEWP, are appropriately used to mitigate such a risk, if not properly used they can give rise to serious safety risks. The failure to check and use mobile lifting equipment in accordance with safety instructions is a common risk factor in many industries. The fine ought to be set mindful of the need for general deterrence to address those common risks.

46. As noted, Dukes was a company that has demonstrated a concern to meet its WHS Act responsibilities. It is apparent that the failures to which it has pleaded guilty were not consistent with its usual approach to safety. Further, it has taken extensive steps to seek to avoid similar risks arising in the future. Those findings reduce the extent to which I need to have regard to specific deterrence. Nevertheless, the penalty should appropriately contain provision for specific deterrence.

Aggravating factors

47. Consistent with the concession made by SafeWork NSW, I find that there are no aggravating factors as contemplated by s 21A(2) of the CSP Act.

Mitigating factors – s 21A(2) of the CSP Act

48. As submitted by Dukes, the offence was not part of a planned or organised criminal activity, [8] however this mitigating factor is not one that has a significant impact on this sentence.

    8. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(b).

49. Dukes has no prior convictions under the WHS Act. [9] It is otherwise of good character, [10] noting the evidence of the actions it has taken following the offence and its community engagement.

    9. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e).

    10. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f).

50. Because of the evidence of the actions it has taken following the offence, I find that Dukes has good prospects of rehabilitation and, notwithstanding it frequently undertaking high risk work, unlikeliness to reoffend. [11]

    11. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g)–(h).

51. Beyond adhering to Dukes’ obligation to respond to statutory notices, Dukes has assisted SafeWork during the proceedings by facilitating worker and officer interviews. [12]

    12. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(m).

52. Dukes has provided evidence that it has accepted responsibility for its actions. [13]

    13. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)(i).

53. Dukes entered a plea of guilty on 16 June 2025 to the charge particularised in an Amended Summons filed in Court on that date. The plea of guilty was entered at the sixth mention of proceedings, which commenced with the issue of a summons on 9 August 2024. The prosecutor accepted that it was open to the Court to award the maximum utilitarian discount of 25% in recognition of the early guilty plea to the Amended Summons. [14] I accept that a discount of 25% is appropriate in these circumstances. [15]

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

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

Capacity to pay a fine

54. The Court must have regard to Dukes’ means before imposing a fine. [16] There was no evidence before the Court concerning Dukes’ financial position, nor a submission that it had a reduced capacity to pay a fine.

    16. Fines Act 1996 (NSW), s 6.

55. Dukes at the hearing withdrew a submission that the Court ought to have regard to the impact that an order to pay of costs would have on Duke’s capacity to pay a fine.

Penalty

56. The appropriate fine in light of all I have considered is $140,000, which will be reduced by 25% to reflect the plea of guilty.

Orders

57. I make the following orders:

1. I convict Dukes Painting Services Pty Ltd of the offence as charged.

2. I impose a fine of $105,000.

3. Dukes Painting Services Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

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

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Endnotes

398.

Decision last updated: 01 October 2025