SafeWork NSW v Empire Contracting Pty Ltd

[2022] NSWDC 437

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437

Hearing dates:

20 September 2022

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $300,000.00.

(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, as agreed or assessed.

Catchwords:

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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (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 Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407

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

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

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 (August 2019)

Safe Work on Roofs Information Sheet (2016)

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Empire Contracting Pty Ltd (Defendant)

Representation:

Counsel:
Mr M Scott (for the Prosecutor)
Mr C Magee (for the Defendant)

Solicitors:
Mr H Bell, Department of Customer Services (for the Prosecutor)
Mr M Hope, Holding Redlich Lawyers (for the Defendant)

File Number(s):

2021/342848

Judgment

INTRODUCTION

1. By an Amended Summons filed on 18 July 2022 SafeWork NSW (‘the prosecutor’) charged Empire Contracting Pty Ltd (‘the defendant’) with a breach of the Work Health and Safety Act 2011 (NSW) (‘the Act’). The Amended Summons pleaded that as at 9 January 2020, the defendant was a person conducting a business or undertaking providing site preparation services and specialized hazard material management including asbestos removal and disposal (see paragraph 4 of the Agreed Statement of Facts (‘ASOF’) and paragraph 2 of the Amended Summons). This work was being conducted by the defendant on the premises of Wollongong University (‘the site’) and involved the removal of asbestos from student accommodation buildings to allow for those buildings to be demolished.

2. The defendant entered a plea of guilty on 18 July 2022 to a breach of ss 19(1) and 32 of the Act. The defendant, having entered its plea of guilty to the charge, is taken to have admitted the particulars of the charge as set out in Annexure A to the Summons.

3. The Prosecutor’s Sentence Tender Bundle became Exhibit A and the defendant read an affidavit of David George, a director and employee of the defendant, sworn 6 September 2022 which became Exhibit B.

OVERVIEW

4. On 9 January 2020 the defendant had work being completed by eight employees, the nature of which is described in paragraph 14 of the ASOF.

5. One of the workers on the site on the relevant day was Mr Thay.

6. Mr Ngeap Thay (‘Mr Thay’) had been employed by the defendant for approximately two years prior to the incident, having commenced employment on 11 December 2017 as a labourer. There is no record of Affective Services Australia Pty Ltd inducting Mr Thay onto the site. There was also no record of assessment of Mr Thay’s competency for working at heights using an individual fall arrest harness, and he did not have any qualifications, formal training, or extensive experience for working at heights.

7. Mr Sok Hee Kith (‘Mr Kith’) was an operations manager and director of the defendant, performed the role of site supervision and held this position for 12 years. Mr Bunthi Tia (‘Mr Tia’) was also a site supervisor, employed by the defendant for eight years. Both were experienced in asbestos removal and disposal services and held SafeWork NSW Approved Supervisor Licences to oversee asbestos removal works.

THE INCIDENT

8. On 9 January 2020, at approximately 7:00am, Mr Kith conducted a toolbox talk with the following eight workers on site before work commenced: Mr Thay, Mr Dara Ang (‘Mr Ang’), Mr Seth Sun (‘Mr Sun’), Mr Phy Hout (‘Mr Hout’), Mr San Am (‘Mr Am’), Mr Rathany Deng (‘Mr Deng’), Mr Lee Ban Hour (‘Mr Hour’) and Mr Phuoc Ly (‘Mr Ly’).

9. Separate work crews were allocated to perform three tasks on the day of the incident. Mr Kith assigned workers to work in one of the three groups:

• Mr Seth, Mr Ang and Mr Hout to remove roof battens on Units 51-55;

• Mr Hour and Mr Ly to do final cleaning for inspection of the Amenities Block; and

• Mr Am, Mr Deng and Mr Thay to prepare the containment on Units 56-59.

10. Mr Kith stated that he did not allocate Mr Thay to the roof because he considered Mr Thay to be a ‘ground worker’ without qualifications or experience to work from heights. Mr Thay was present at toolbox talks where the safe use of harnesses was addressed and used an individual fall arrest in 2018 and 2019 while employed by the defendant.

11. After the toolbox talk, Mr Sun, Mr Ang, Mr Hout and Mr Thay each collected a safety harness, lanyard and rope from the site shed to remove the timber roof battens on Units 51-52. They accessed the roof of the Units via ladders that were approximately 2.5m above ground level and secured and tied off to the exposed roof trusses. Each worker anchored a rope to the opposite side of the building units. Mr Sun observed Mr Thay tying his own rope to the anchor point. The workers then connected the safety harness using snap hook lanyards to the rope.

12. Whilst working on the roof Mr Thay was wearing a fall restraint harness with a lanyard attached to an anchor point.

13. Mr Hout and Mr Ang worked together on the roof of one building, while Mr Thay and Mr Sun worked together on the roof of another. Mr Sun stated that he worked with Mr Thay on the roof throughout the entire workday and Mr Ang stated that he saw Mr Thay in the morning working on ‘the other side of the roof’. Mr Am stated that he did not perform the containment work with Mr Thay and that Mr Thay was working in a ‘different area’, while Mr Kith stated that he did not recall seeing Mr Thay on the roof of Units 51-55 between 6.00am and 10.30am on the day of the incident.

14. Before leaving the site between 10:30am and 11:30am, Mr Kith handed over the site supervisor responsibilities to Mr Tia and they conducted a walkthrough. Mr Tia recalled Mr Thay, Mr Deng and Mr Am working on containment and Mr Ang, Mr Sun and Mr Hout working on the roof. Mr Tia did not recall speaking to Mr Thay at all.

15. Mr Sun and Mr Thay completed the timber batten removal work on the roof at approximately 2:20pm.

16. While on the roof, Mr Sun told Mr Thay to go down first and remove his lanyard. Mr Thay unhooked his harness while next to the ladder and tossed the rope to Mr Sun. After Mr Thay removed his lanyard, Mr Sun saw him step towards the ladder and fall between the timber beams. Mr Thay had stepped onto friable asbestos roof sheeting and fell 2.5m onto the concrete floor below.

17. At approximately 2:34pm, Emergency Services were called and treated Mr Thay at the site for a closed head injury. He was transported to Wollongong Hospital. Mr Thay died from multiple trauma injuries at 8:40pm that evening.

RISK

18. The risk is described in Annexure ‘A’ to the Amended Summons in the following terms:

‘The risk was the risk to workers, in particular Mr Thay, suffering serious injury or death as a result of falling from height while working on the roof at the site and/or accessing or egressing the roof.’

RELEVANT LEGAL OBLIGATIONS & GUIDANCE MATERIALS

19. Regulation 78 of the Work Health & Safety Regulation 2017 refers to the use of barriers, solid constructions in respect of surfaces through which a person may fall.

20. The SafeWork NSW publication Code of Practice – Managing the Risk of Falls at Workplaces (August 2019) (‘the Falls Code’) was published and available to the defendant before and at the time of the incident. It requires that ‘only workers who have received training and instruction in relation to the system of work are authorised to carry out the work’ at paragraph 1.3. Paragraph 3.3 refers to risk assessment and recommends considering several factors when assessing risks arising from fall hazards, including ‘the adequacy of current knowledge and training to carry out work safely, for example, young, new or inexperienced workers may be unfamiliar with the work.’ Paragraph 7.3 refers to lanyards and harnesses, the reliance on workers wearing and using them correctly, and the requirement for workers to be instructed in their safe use.

21. SafeWork Australia’s Safe Work on Roofs Information Sheet (2016) (‘Information Sheet’) provides guidance on hazards to consider in managing fall risks, including ‘overbalancing or losing grip on steep or sloping roofs.’ The roof pitch on the buildings on site was varying with ‘raked’ ceilings. SafeWork NSW photographs taken at the site after the incident show the roof that Mr Thay fell through as steep sloping.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

22. The defendant had a Health, Safety, Environment and Quality (‘HSEQ’) system at the time of the incident, which allowed supervisors and workers to identify and address safety risks and hazards on each worksite. As part of this, the defendant implemented an Asbestos Removal Management Plan (‘ARMP’) for each worksite and had written procedures as part of the ARMP, relevant to the work at the site. This included a site-specific Asbestos Removal Control Plan (‘ARCP’), Safe Work Method Statement (‘SWMS’), Job Safety Analysis (‘JSA’) and Daily Working at Heights Permit.

23. The ARCP was prepared on 16 October 2019 and identified working at height as a ‘large portion of the works’. Section 3.5 of the ARCP specified:

‘Access onto the roof structure will be via an approved system. Internal height access systems are to be provided to allow safe removal of the upper rafter asbestos sheeting, access will be via platform ladders/mobile scaffold, as the ceilings are ‘raked’, a one-off access system is not possible or practical so internal height access will be a combination of systems.’

24. Section 7 of the ARCP outlined a procedure for removing the ACMs, which stated:

‘Ensure mobile scaffold and platform ladders are available and for the correct heights for the removal of ceiling linings. […]

As the tile battens are removed, they are to have the fixings/bent/ removed/made safe, bundled together and treated as asbestos waste.

The asbestos sheeting can then be ‘popped’ upwards this may cause the sheets to break, however it is the intention to remove in full if possible or in as larger section as practical…’

25. A SWMS was prepared on 21 October 2019, detailing how asbestos ceiling sheets fixed to the raked timber rafters and roof tile timber battens were to be removed. The removal method described in the ARCP and SWMS were changed before work commenced on site and before workers were inducted onto the SWMS. The amended removal method was used by the workers assigned to complete roof works when on site, including on the day of the incident. All workers had been inducted on the SWMS on site from December 2019, including Mr Thay.

26. Mr Tia conducted a site assessment on 3 December 2019 before work was conducted on site. He considered that the method of work set out in the ARCP and SWMS would expose workers to an increased exposure of asbestos and considered it preferable to have workers remove roof battens externally from on top of the roof. The method of work was changed and a subsequent JSA document was prepared by Mr Tia on 3 December 2019. This required workers to wear a fall prevention harness attached to a rope that was anchored using the cross-arm sling method to an appropriate point on the opposite side of the building, and a tied and secured ladder to provide access and egress to the roof from which the timber battens would be removed.

27. The JSA specified that a harness was to be always worn and only removed when there was ‘3 point contact’. The method of work stipulated in the JSA was the method used by the workers on the day of the incident.

28. The defendant conducted daily toolbox talks on site before work commenced regarding the work to be undertaken and safety measures to be followed. Workers were allocated specific tasks during the toolbox talk by the site supervisor. The toolbox talk was recorded in English while instructions were given verbally in Khmer, which was the predominant spoken language of workers on site on the day of the incident.

29. A Daily Working at Height Permit was completed by Mr Kith on 9 January 2020.

30. It is an agreed fact that Mr Thay did not have any qualifications, formal training or extensive experience in working at heights, nor was there any assessment of Mr Thay’s competence for working at heights using an individual fall arrest harness (ASOF [43]-[44]).

31. The defendant accepts that Mr Thay was not formally qualified, not experienced in working at heights and that the supervision that was in place failed, as Mr Thay should not have been there.

STEPS TAKEN AFTER THE INCIDENT

32. SafeWork NSW issued an Improvement Notice in response to the incident. The defendant complied and updated its SWMS with two processes of accessing the roof for the Wollongong Project by elevated work platform or mobile scaffold. All workers at the site were toolboxed on this updated SWMS on the first day after the incident.

33. Other systems were implemented, including a refresher course in working at heights for workers involved in the Wollongong project, a new formal checklist for workers before using a harness and a new “Heights Rescue Plan” document that formally codified the tasks to be completed prior to work commencing from height to minimise the risk of a fall and a step-by-step process to be followed in the event of a fall.

SENTENCING

34. 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.

35. 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.

36. 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.

37. 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

38. 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.

39. 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.

40. 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.

41. 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].

42. 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.

43. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

44. 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.’

45. 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.’

46. 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.

46. 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).

47. 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).

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

1. As can be seen from paragraph 16 of the ASOF, Mr Thay together with three other workers, following the toolbox talk addressed by the supervisor Mr Kith, collected safety a harness, lanyard and rope from the site shed for the purpose of removing timber roof battens on units 51 and 52.

2. Paragraph 43 of the ASOF states:

‘There was no record of assessment of Mr Thay’s competency for working at heights using an individual fall arrest harness.’

3. Paragraph 44 of the ASOF states:

‘Mr Thay did not have any qualifications or formal training for working at heights, nor did he have extensive experience in working at heights.’

4. Paragraph 50 of the ASOF states:

‘… Mr Sun states that he worked with Mr Thay on the roof throughout the entire work day commencing after the 7:00am toolbox talk through to the first break at approximately 9:30am, the second break for lunch at approximately 12:40pm and following the lunch break at 1:30pm until the time Mr Thay fell at approximately 2:30pm.’

5. As can be seen from the photographs which are part of the Factual Inspection Report, the area of the roof where Mr Thay and Mr Sun were working is exposed and visible.

6. At paragraph 53 of the ASOF Mr Ang is recorded as having seen Mr Thay performing work on the roof and in fact saw him climbing on to the roof and working with Mr Sun.

7. The supervisor, Mr Kith, is recorded at paragraph 48 of the ASOF as stating that he did not allocate Mr Thay to work on the roof because he believed he was a “ground” worker.

8. At paragraph 46 of the ASOF, Mr Kith is recorded as having allocated Mr Thay to work on the ground, preparing containment on units 56 to 59 with Mr Am and Mr Deng. Yet at paragraph 54 of the ASOF, Mr Am is recorded as stating that he did not perform containment work with Mr Thay on the day of the incident, as Mr Thay was working in a different area.

9. Mr Kith left the site between 10.30am and 11.30am having handed over the role of supervisor to Mt Tia (paragraph 55 ASOF). By 10.30am, Mr Thay had been working on the roof with Mr Sun for at least three hours.

10. The risk of a person not properly instructed in working at heights and not properly instructed in the risks arising from a failure to use fall restraint equipment such as harnesses and lanyards appropriately, is obvious and is reflected in the Health and Safety Regulations as well as the Code of Practice.

11. In circumstances where Mr Thay could perform such work for an entire working day whilst in full view of any person in the vicinity, such a working day including two breaks, one in the morning and one at lunch, and the defendant had no more than eight people working on the day, a conclusion could be drawn that the breach by the defendant had an objective degree of seriousness so as to put it into the middle range of seriousness.

12. This conclusion is confirmed when one has regard to the seriousness of the risk to health and safety posed by someone falling from or through the roof to a hard surface below.

13. The risk of a fall from the roof was an obvious and foreseeable risk.

14. The potential consequences of the risk were catastrophic and included a risk of death.

15. As a specialist hazardous material removal and management business, the defendant ought to have reasonably known about the risk and the ways of managing it.

16. There was practical guidance material available to the defendant on how the risk ought to have been managed, including the Falls Code where relevant sections are referred to in paragraphs 62-64 of the ASOF and the Information Sheet.

17. The likelihood of the risk materialising was reasonably high in circumstances where it was not adequately controlled.

18. There were simple, straightforward steps which could and should have been taken to avoid the risk. There were little, if no, costs associated with the steps.

19. The steps taken by the defendant after the incident were not complex or burdensome; and

20. Mr Thay suffered fatal injuries.

50. 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].

51. 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.’

52. 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).

53. The objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation 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] and [53];

• Whether the risk was known or ought reasonably 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).

54. Very fairly, counsel for the defendant conceded that Mr Thay should not have been up working on the roof, and that it was the defendant’s failure that he was allowed to do so. The system of supervision of workers failed.

55. However, I also accept that a qualified supervisor had allocated Mr Thay to groundwork. There is no evidence why Mr Thay went up onto the roof, and no evidence that anyone told him to go up onto the roof. There is no evidence as to whether Mr Thay had been doing the roof work previously.

56. I accept that the defendant had detailed and extensive systems of WHS, however, working on a roof requires that an employer must properly instruct and supervise any worker doing so, as it creates a risk.

57. This is not a case where the defendant had no WHS systems and policies in place and can therefore be distinguished from the decision of Russell J in SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407 where far poorer systems were in place. The defendant had qualified supervisors on site, but despite the good policies and procedures in place, Mr Thay still fell and died of his injuries sustained in that fall.

DETERRENCE

58. 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.

59. 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).

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

61. 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.’

62. 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 accessed by ladders, in a workplace that may contain dilapidated or deteriorated materials.

63. 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.

64. General deterrence is necessary to heighten and focus the attention of companies engaged in the building and construction industry. The risks associated with falls through fragile roof surfaces, in circumstances of removal of hazardous materials at height, are extremely well known and glaringly obvious.

65. 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.

66. I note that the defendant continues to perform the same work as it did when the incident occurred, however, I accept that there have been significant changes made to their processes to ensure that the appropriate level of supervision is maintained at all times on each site, and that all workers on the sites are expressly aware of the importance of supervision and communication on any work sites. This is referred to in Mr George’s affidavit (Exhibit B) and I accept that evidence, and that Mr George has made a genuine commitment to safety on his work sites.

67. 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

68. 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).

69. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. The defendant concedes that Mr Thay’s death is an aggravating factor.

MITIGATING FACTORS

70. The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act. This is a commendable record given that the defendant has been performing this work for 15 years in a high-risk industry. I note that the defendant is also committed to providing its workers with ongoing training in relation to safety hazards and risk.

71. I accept that the defendant has a strong sense of commitment to safety standards and took a number of immediate steps to improve its procedures and overall workplace health and safety after the incident and continues to provide its workers with ongoing training in relation to safety hazards and risks. I also note that the defendant demonstrated industrial ‘good citizenship’ which is reflected in the steps taken with regard to Mr Thay’s family and other workers who were involved in the incident (Exhibit B): s 21A(3)(f) of the Sentencing Act.

72. The affidavit of Mr George (Exhibit B) satisfies me that the defendant is unlikely to reoffend, and I note there have been no subsequent breaches of the Act since this incident: s 21A(3)(g) of the Sentencing Act.

73. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. The defendant has undertaken significant steps following the incident which have gone right through the corporate structure, from directors to the labour force.

74. Mr George’s affidavit (Exhibit B) demonstrates the acceptance of responsibility for the defendant’s failures. I am further satisfied that the defendant and all its directors have demonstrated remorse and contrition: s21A(3)(i) of the Sentencing Act.

75. The defendant entered a plea of guilty early, which of itself demonstrates remorse, 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: s21A(3)(k) of the Sentencing Act.

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

77. The appropriate fine for the defendant is $400,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

78. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect a plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $300,000.00.

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, as agreed or assessed.

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Decision last updated: 30 September 2022