SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75
Hearing dates:
22 March 2023
Date of orders:
31 March 2023
Decision date:
31 March 2023
Jurisdiction:
Criminal
Before:
Russell SC DCJ
Decision:
(1) Evolve Roofing Pty Ltd is convicted.
(2) The appropriate fine is $400,000 but that will be reduced by 25% to $300,000 to reflect the early plea of guilty, and further reduced to $150,000 by reason of capacity to pay.
(3) Order Evolve Roofing Pty Ltd to pay a fine of $150,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5) Order Evolve Roofing Pty Ltd to pay the prosecutor’s costs.
Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – specific deterrence – capacity to pay appropriate penalty
SENTENCE – general deterrence – failure to take simple and effective precautions to stop falls – carnage in the roofing industry
COSTS – prosecution costs
OTHER – defendant engaged to replace roof – worker stepped backwards onto fragile skylight – fell nine metres to ground below
Solicitors: Department of Customer Service (Prosecutor) Thompson Cooper Lawyers Pty Ltd (Defendant)
File Number(s):
2021/322196
Judgment
Introduction
The roofing industry…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75
Case
[2023] NSWDC 75
Decision Date
CaseChat Overview and Summary
The case before the court involved SafeWork NSW prosecuting Evolve Roofing Pty Ltd for an incident in which a worker stepped backwards onto a fragile skylight and fell nine metres to the ground below. The court was tasked with determining the appropriate penalty for the company’s failure to provide a safe working environment, given the worker's serious injuries and the risk of death or serious injury. The primary legal issues included assessing the objective seriousness of the offence, considering the mitigating and aggravating factors, and determining the appropriate fine and costs.
In determining the penalty, the court considered the objective seriousness of the offence, the plea of guilty, and the company's capacity to pay. The court found that the company had failed to take simple and effective precautions to prevent falls from height, which had led to significant carnage in the roofing industry. This failure was compounded by the lack of a safety system in place, which was a clear breach of the company's duty under work health and safety laws. The court also noted that the early plea of guilty and the company's limited capacity to pay were mitigating factors. The court decided to impose a fine of $400,000, reduced by 25% for the early plea, and further reduced to $150,000 due to the company's financial situation.
The court ordered that half of the fine be paid to the prosecutor as per Section 122(2) of the Fines Act 1996 (NSW). Additionally, the court mandated that Evolve Roofing Pty Ltd pay the prosecutor’s costs. This decision not only aimed at punishing the company for its breach but also sought to deter future non-compliance by sending a strong message about the importance of work health and safety. The court's ruling underscored the need for companies to implement effective safety measures to protect their workers and avoid severe penalties.
Orders
Orders of the court
(1) Evolve Roofing Pty Ltd is convicted.
(2) The appropriate fine is $400,000 but that will be reduced by 25% to $300,000 to reflect the early plea of guilty, and further reduced to $150,000 by reason of capacity to pay.
(3) Order Evolve Roofing Pty Ltd to pay a fine of $150,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5) Order Evolve Roofing Pty Ltd to pay the prosecutor’s costs.