SafeWork NSW v Newcastle Roofing Professionals Pty Ltd

[2025] NSWDC 155

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Newcastle Roofing Professionals Pty Ltd [2025] NSWDC 155

Hearing dates:

29 April 2025

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Newcastle Roofing Professionals Pty Ltd was convicted on 29 April 2025.

(2)   The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Newcastle Roofing Professionals Pty Ltd to pay a fine of $300,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Newcastle Roofing Professionals Pty Ltd to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from roof – failure to install fall prevention devices around the perimeter of the roof – failure to properly assess anchor point requirements and develop and document an anchor point plan – failure to develop, implement and enforce a site-specific Safe Work Method Statement

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW) ss 6, 122

Work Health and Safety Act 2011 (NSW) ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW) cll 79, 79, 291, 299

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Safe Work Australia, Safe Work on Roofs Information Sheet, January 2015

SafeWork NSW, Code of Practice – Construction Work, August 2019

SafeWork NSW, Code of Practice – Managing the Risk of Falls at Workplaces, August 2019

SafeWork NSW, Code of Practice – Managing the Risk of Falls in Housing Construction, August 2019

SafeWork NSW, Construction Falls from Height Blitz Checklist, undated

SafeWork NSW, Harness safe work Information session, September 2021

SafeWork NSW, Roof edge protection fact sheet, 5 July 2021

SafeWork NSW, Work safely at heights in construction

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Newcastle Roofing Professionals Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
C Magee (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Braye Cragg Solicitors (Defendant)

File Number(s):

2023/347111

Judgment

1. The defendant Newcastle Roofing Professionals Pty Ltd (Newcastle Roofing) was engaged to undertake roof replacement works at a spit-level residential premises. On 8 November 2021 Mr Christopher Rundle, a Roofing Plumber, accessed the roof and traversed the roof towards an anchor point. Mr Rundle slipped before reaching the anchor point. He slid to the edge of the roof and fell approximately 4.2 metres to the ground where he sustained serious injuries.

2. Newcastle Roofing has pleaded guilty to an offence 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) (the WHS Act) it failed to comply with that duty and thereby exposed workers, in particular Mr Rundle, to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,782,579.

The Risk

4. The risk described in par 10 of Annexure A of the Amended Summons is as follows:

“The risk was of workers, in particular Mr Rundle, suffering death or serious injury as a result of falling from the perimeter edge of the residential house during roof replacement works.”

Reasonably Practicable Measures

5. Paragraph 11 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure so far as was reasonably practicable, the health and safety of workers, including Mr Rundle, in that it failed to take the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers by:

(a)   Installing fall prevention devices around the perimeter of the roof, such as scaffolding and/or a roof safety rail system (or a combination of both);

(b)   Where a fall arrest system was to be used, assessing the anchor point requirements and developing and documenting

i.   an anchor point plan which showed the system layout, access points, all fall hazards, anchor point locations and the radius of travel from the anchor in relation to the fall hazards;

(c)   Developing, implementing, and enforcing a site-specific Safe Work Method Statement (SWMS) which set out how the risks associated with the work would be controlled, so far as reasonably practicable;

(d)   Providing information, training, and instruction to workers on the control measures to be implemented for the works, any fall arrest system to be implemented including, where a fall arrest system was to be used in an anchor point plan, and in the content and use of a SWMS.”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. Newcastle Roofing operated a business involving the installation of roofs, guttering, drainage, and downpipes, including remedial and restoration work. The business serviced Newcastle and the surrounding area.

8. Newcastle Roofing engaged the following:

1. Brendan Twist, General Manager;

2. Brendan Fowkes, Production Manager;

3. Jay Karg, Senior Assessor/Production Coordinator. Mr Karg was engaged by Newcastle Roofing through his company, Roofing Sales Pty Ltd;

4. Lee Whatling, Assessor;

5. Brett Woodhouse, Assessor;

6. Liam Anderson, Roofing Plumber;

7. Christopher Rundle, Roofing Plumber.   Mr Rundle was a sole trader who contracted his services to Newcastle Roofing;

8. Josh Ramage, Roofing Plumber;

9. Egan Roberts, Roof Labourer;

10. Shannen Allmon, Trainee/Roof Labourer; and

11. Tyler Holt, Roofing Labourer.

The roof replacement work

9. Newcastle Roofing was engaged to undertake the roof replacement at a split-level residential premises at Valentine (the site). The premises was two stories at the front. The premises extended in an L-shape towards the rear of the block. The roof consisted of the front (western section), and two rear (eastern) sections in a sawtooth-style configuration. The main eastern roof was estimated to be approximately 1m lower at the ridge line than the western roof. The peak of the western roof was measured to be approximately 7m to the ground below.

10. The works involved removing existing tiles from sections of the roof and supplying and installing Colourbond roofing and associated fixings. The roof was a gabled-style roof.

11. At the rear (eastern) side of the house was a stairway extending from the ground to the first floor. At the top of the steps was a covered balcony. At the base of the steps was a tiled landing. The roof was fitted with solar panels along the western (front) aspect. The pitch of the roof was approximately 10 to 12 degrees.

12. On 8 May 2021, Roof Assessor, Mr Whatling attended the site to undertake an initial assessment of the works.

13. On 5 August 2021, Mr Whatling returned to the site to undertake a more detailed assessment of the work that was required to be undertaken, including assessing the health and safety risks involved in undertaking the roof replacement works. Mr Whatling took photographs of the roof and drafted a "mud map" for the roof replacement works. The photographs and the mud map were used by Mr Karg to enable a quotation to be provided to the owner of the premises. Mr Whatling's mud map was recorded in Newcastle Roofing’s CMS 'Job Progress' system. At the time of his assessment, Mr Whatling did not conduct a risk assessment to determine what controls ought to be implemented to manage the risk of a fall from the perimeter edge of the roof.

14. On 6 August 2021, Newcastle Roofing provided a quotation for the roof replacement works to the customer. The works included supply and installation of roof railing as per health and safety requirements. Newcastle Roofing used its prior experience to estimate the cost of the roof railing required for the job. The cost of the proposed works was $35,850.00.

15. On 17 August 2021, the customer accepted the quotation.

16. On 2 September 2021, a Registered Training Organisation, Combined Safety Services, were engaged by Newcastle Roofing and provided training and assessment in the course 'Work Safely at Heights' to Mr Rundle and Mr Ramage.

17. On 12 October 2021, Mr Woodhouse, Assessor, attended the site to measure up the roof, and to determine the quantities of various materials and products required to undertake the re-roofing.

18. On 12 October 2021, Mr Woodhouse completed notations as to the requirements for the material for the new roof. Mr Woodhouse's notebook record includes a notation “complete scaffold”. Mr Woodhouse recommended the installation of complete scaffold for the site because in his view the roof rail system would not be able to be installed due to the height.

19. On 13 October 2021, Mr Woodhouse informed Newcastle Roofing about the height of the roof and recommended that scaffolding would be required. In response to Mr Woodhouse's recommendation Ms Humphries sent an email to Xtreme Scaffold Pty Ltd (Xtreme) requesting a quotation for scaffolding to be erected around the perimeter of the roof at the site. Xtreme were provided with photographs of the roof and the equipment requirements.

20. On 13 October 2021, Xtreme provided a quotation for all four sides of the house in the amount of $4,585.00 plus GST.

21. On 13 October 2021, Newcastle Roofing prepared a Safe Work Method Statement (SWMS) for 'General Roof Work' for the work to be undertaken at the site. The SWMS recorded that Mr Twist, Mr Fowkes, Mr Karg and Mr Miller were consulted and involved in the preparation of the General Roof Work SWMS.

22. On 14 October 2021, Mr Twist, Mr Karg and Mr Fowkes participated in an online meeting with SafeWork NSW (SafeWork) about working safely on roofs.

23. During the meeting, SafeWork provided the Newcastle Roofing staff with information on:

1. the hierarchy of controls for minimising the risk of a fall;

2. edge protection;

3. systems of work for fall arrest/temporary restraint;

4. anchorage points, including the requirement for safe access to be provided to anchor points; and

5. the requirement to complete a documented plan which shows the harness-based system layout, access points including method (i.e., scaffold stairs, ladder, fall hazards such as edges, skylights, polycarbonate roof sheets) anchor point locations and the number of anchor points required, the radius of travel from the anchor in relation to the fall hazards.

24. On 15 October 2021, Newcastle Roofing sent an email to the customer advising that, due to SafeWork requirements, in order to complete the works, scaffolding was required. Newcastle Roofing provided the customer with the costs of the scaffolding and inquired whether the customer wished to proceed with the job or cancel.

25. On 18 October 2021, the customer advised by return email that he did not wish to pay additional costs for the works.

26. On 18 October 2021, Newcastle Roofing spoke to Site Safety Specialists Pty Limited trading as Site Safety to book a roof rail system for the works. Site Safety is a business which provides and installs roof safety rails in Newcastle and surrounding regions. On 18 October 2021 Newcastle Roofing provided Site Safety with the photographs taken by Mr Whatling and the mud map. On 18 October 2021, Site Safety confirmed due to the nature of the gables on the roof of the house they could not provide roof rails around the perimeter of the entire roof. Site Safety advised they would install roof rails at the front of the premises and as far up the sides of the roof as the gables would allow.

27. As a result of Site Safety's inability to install roof rails around the perimeter of the entire roof, Newcastle Roofing determined that the works could proceed in the absence of scaffolding and instead using a combination of a roof rails where they could be installed and a harness­based system, involving the installation of anchor points on the roof onto which lanyards would be attached for workers to then attach their harnesses.

28. On 18 October 2021, Mr Karg contacted the customer and arranged for the removal of solar panels from the roof and for the installation of a roof rail system.

29. On 20 October 2021, Site Safety installed a roof rail system along the front elevation of the property and the solar panels were removed.

30. On or around 21 October 2021, the roofing material was delivered to the site and the workers commenced stripping the tile roof.

31. From 25 October to early November 2021, the work was delayed due to the weather.

32. From early November 2021, the workers continued with the roof installation works.

33. On Friday 5 November 2021, the Newcastle Roofing workers completed installing new sheets on the eastern facing pitch of the roof. The work was subsequently abandoned due to rain. A tarpaulin was fixed to the roof where the new sheets were yet to be installed.

34. On 5 November 2021, the customer contacted Newcastle Roofing and advised that the tarpaulin they had put on the roof was flapping around.

35. On or about 5 November 2021, the work crew who were going to continue the works at the site the following week, were informed via the Job Progress app of the status of the installation, the further work required to be undertaken, and the requirement to use harnesses in sections of the roof where the roof rails were not able to be installed.

36. On Sunday 7 November 2021, there was a major leak into the house as a result of the inadequately secured tarpaulin. Mr Karg instructed Mr Anderson to attend the site on Monday to help the workers rectify the tarpaulin.

8 November 2021

37. On 8 November 2021, Mr Rundle, Mr Anderson, Mr Ramage, Mr Roberts, Mr Allmon and Mr Holt were all on site.

38. Mr Rundle informed the workers to stay off the roof until he had spoken to the owners. Mr Rundle then went inside the house to speak to the owner about the water leaks that had come inside the house, allegedly because the tarpaulin that had been put over sections of the house was not tied down correctly.

39. While Mr Rundle was inside the house, Mr Anderson spoke to the rest of the workers, including Mr Roberts and Mr Ramage and told the workers not to go near the roof because he believed it would be wet and he wanted to see what the weather was doing before the tarpaulins were removed.

40. Mr Anderson then left the house to use a nearby public toilet.

41. After speaking with the customer inside the house, Mr Rundle came back outside the house, and told the workers, including Mr Ramage and Mr Roberts, to get their tools and equipment ready, including harnesses, as the workers would need to start removing the tarpaulin that was covering the section of the roof were the leaking had occurred. Mr Rundle was then called by the owners back into the house to inspect more damage.

42. On 8 November 2021, an access ladder was positioned on the southern side of the house. The access was onto a single storey sloped section of the roof.

43. Mr Ramage and Mr Roberts accessed the roof by ascending the ladder. Mr Ramage and Mr Roberts were wearing harnesses and lanyards and attached their lanyards to the anchor points as they commenced removing the tarpaulin.

44. After speaking with the customer inside the house, Mr Rundle returned outside and saw the workers had accessed the roof and commenced removing the tarpaulin. Mr Rundle accessed the roof via the ladder and traversed the tile roof towards an anchor point to connect his lanyard. Mr Rundle slipped and slid down the metal roof when approaching the anchor point. The anchor point system was not adequate to provide protection against the risk of Mr Rundle falling from the roof, including when accessing it.

45. At about 7:30am Mr Rundle slipped to the edge of the roof and fell approximately 4.2 metres from the eastern elevation of the roof to the tiled landing below, striking the handrail of a set of stairs as he fell.

46. Mr Anderson had returned to the site and observed Mr Ramage wearing a harness and working on the front section of the roof removing the tarpaulins. Mr Anderson went to his truck to get his tools shortly prior to the incident.

47. An ambulance attended and Mr Rundle was conveyed to John Hunter Hospital.

Injuries

48. Mr Rundle suffered serious injuries including a right intertrochanteric (hip) fracture, comminuted extensive right calcaneal (heel) fracture and possible fracture of the lateral process of the talus, right and left rib fractures (acute right ninth rib fracture and fractures to the left second and fourth ribs), and suspected right posterior portal vein thrombosis.

49. Mr Rundle has no current capacity for work (PX 2).

Relevant legislation and guidance material

Work Health and Safety Regulation 2017 (NSW)

50. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) states that a person conducting a business or undertaking (PCBU) must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to that person or any other person.

51. Clause 79 of the WHS Regulation sets out the specific control measures to be implemented to minimise the risk of fall, where reasonably practicable to do so. Clause 79(3) sets out a hierarchy of controls for providing adequate protection against the risk of a fall.

“(3)  The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by—

      (a)  providing a fall prevention device if it is reasonably practicable to do so, or

      (b)  if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

      (c)  if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.”

52. The work undertaken by Newcastle Roofing was "high risk construction work" in that it involved a risk of a person falling more than 2 metres (clause 291(a) WHS Regulation). Accordingly, Newcastle Roofing was required to ensure that a SWMS was prepared for the proposed work which identified that the work that was high risk construction work, specified hazards relating to the high risk construction work and risks to health and safety associated with those hazards, described the measures to be implemented to control the risks, and described how the control measures were to be implemented, monitored, and reviewed (clause 299 WHS Regulation).

SafeWork NSW Code of Practice – Managing the Risk of Falls

53. Prior to the incident SafeWork had published the Code of Practice – Managing the Risk of Falls (Falls Code) in August 2019. The Falls Code is admissible under section 274 of the WHS Act, and the Court may have regard to the Falls Code as evidence of what is known about a hazard or risk, risk assessment and risk controls. The Falls Code was available to Newcastle Roofing prior to the incident and relevantly provided:

1. Falls are a major cause of death and serious injury in Australian workplaces.

2. When work cannot be performed on the ground or from a solid construction, you, as a PCBU must minimise the risk of a fall by providing a fall prevention device, if it is reasonably practicable to do so.

3. A 'fall prevention device' is material or equipment—or a combination of both—designed to prevent a fall from temporary work at heights, that once in place after initial installation does not require any ongoing adjustment, alteration, or operation by any person to ensure its integrity. Fall prevention devices include edge protection.

4. Guardrails may be used to provide effective fall prevention at the edge of roofs.

5. A 'work positioning system' includes any plant or structure, other than a temporary work platform, that enables a person to be positioned and safely supported at a location in such a way that a fall is prevented.

6. The use of work positioning systems must only be considered if it is not reasonably practicable to carry out work on the ground or on a solid construction, or by providing a fall prevention device.

7. A restraint technique controls a person's movement by physically preventing the person from reaching a position at which there is a risk of a fall. It consists of a harness that is connected by a lanyard to an anchorage or horizontal lifeline. It must be set up to prevent the wearer from reaching an unprotected edge.

8. Restraint techniques must only be used if it is not reasonably practicable to prevent falls by carrying out work on the ground or on a solid construction, or by minimising the risk using a fall prevention device, such as providing a physical barrier, for example a guardrail.

9. Fall arrest systems, such individual fall arrest systems, are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use a fall prevention device or work positioning system or if these higher-level controls might not be fully effective in preventing a fall on their own.

10. When using fall arrest systems, the following key safety measures should be observed:

1. Fall arrest equipment is selected, installed, and used correctly. Workers should be trained in the use of fall arrest equipment.

2. The equipment and anchorages are designed, manufactured, and installed to be capable of withstanding the force applied to them as a result of a person's fall.

3. The system is designed and installed so that the person travels the shortest possible distance before having the fall stopped.

11. Individual fall arrest systems must only be used where it is not reasonably practicable to use higher level control measures.

12. Each anchorage point should be located so that a lanyard of the system can be attached to it before the person using the system moves into a position where they could fall.

SafeWork NSW Code of Practice – Construction Work

54. Prior to the incident SafeWork had published the Code of Practice – Construction Work (Construction Work Code) in August 2019. The Construction Work Code is admissible under section 274 of the WHS Act and the Court may have regard to the Construction Work Code as evidence of what is known about a hazard or risk, risk assessment and risk controls. The Construction Work Code was available to Newcastle Roofing prior to the incident and relevantly provided:

1. A SWMS is required for the high-risk construction work activities defined in the WHS Regulation.

2. The primary purpose of a SWMS is to help PCBUs, supervisors and workers implement and monitor the control measures established at the workplace to ensure high risk construction work is carried out safely.

3. The content of a SWMS should provide clear direction on the control measures to be implemented. There should be no statements that require a decision to be made by supervisors or workers. For example, the statement "use appropriate personal protective equipment (PPE)" does not detail the control measures. The control measures should be clearly specified.

4. A SWMS must take into account the circumstances at the workplace that may affect the way in which the high-risk construction work is carried out—that is, the site where the high-risk construction work is being carried out, the work environment and the workers carrying out the work.

5. A generic SWMS may be prepared and used for high-risk construction work activities carried out on a regular basis. However, a generic SWMS must be reviewed to take into account the hazards and risks for the specific workplace and be revised as necessary.

SafeWork NSW Code of Practice – Managing the Risk of Falls in Housing Construction

55. Prior to the incident SafeWork NSW had published the Code of Practice - Managing the Risk of Falls in Housing Construction (Housing Construction Code) in August 2019. The Housing Construction Work Code is admissible under section 274 of the WHS Act and the Court may have regard to the Code as evidence of what is known about a hazard or risk, risk assessment and risk controls. The Housing Construction Code was available to Newcastle Roofing prior to the incident and provided consistent information with the Falls Code.

SafeWork NSW Roof edge protection fact sheet

56. Prior to the incident on 5 July 2021 SafeWork had published the Roof edge protection fact sheet. The fact sheet was published on SafeWork’s website and was available to Newcastle Roofing. The fact sheet relevantly provided:

1. Falls from heights is the number one cause of death on NSW construction sites. The most serious and fatal falls are from roofs, ladders, and scaffolds, and from a height of under 4 metres.

2. Where the need to work from a roof cannot be reasonably eliminated, the best control measure for preventing falls over a roof edge is physical guardrails. There are numerous proprietary temporary edge protection systems available, that can be used for a wide range of roof types.

3. Physical barriers such as temporary edge protection or covers must be used where reasonably practicable to prevent falls. The fact sheet also provides guidance for determining whether a temporary edge protection method is suitable for the work being undertaken.

4. The facts sheet provides information on the selection and use of temporary edge protection.

Other Guidance Material

57. Prior to the incident there was further published information available to Newcastle Roofing providing guidance on managing the risk of falls, including the SafeWork NSW, Work safely at heights in construction, the Safe Work Australia, Safe Work on Roofs - Information Sheet, January 2016, and the SafeWork NSW, Construction Falls from Heights Blitz Checklist.

58. During the meeting on 14 October 2021, SafeWork provided Newcastle Roofing’s management team with a presentation titled Harness based work Information Session. The document provided guidance on how to apply a fall arrest temporary restraint system of work, including developing a documented plan which shows the system layout, access points (including method, ie, scaffold stairs, ladder), all fall hazards such as edges, skylights, polycarbonate roof sheets, anchor point locations and the number of anchors required, and the radius of travel from the anchor in relation to the fall hazards.

Systems of work prior the incident

59. Prior to the incident Newcastle Roofing had identified the need for temporary edge protection to be installed to guard against the risk of a fall from the perimeter edge of the house. The house was assessed by Mr Woodhouse as requiring a "complete scaffold”. Newcastle Roofing obtained a quote for the scaffolding for the perimeter of the house, however the installation did not proceed as the customer was not prepared to pay the increased cost of the quotation. Newcastle Roofing considered the job could proceed with harnesses and roof rails (where able to be fitted).

60. Prior to the incident Newcastle Roofing generally only used temporary edge protection when roofs were higher than average. It was usual practice for workers to use harnesses when working on roofs.

61. Newcastle Roofing did not install fall prevention devices around the perimeter of the roof, such as a combination of scaffolding and a roof safety rail system. In the event the customer did not wish to pay for the required edge protection, Newcastle Roofing could have not proceeded with the job.

62. Newcastle Roofing did not develop and implement an adequate fall arrest system to be used by the workers. Prior to the incident there was no documented anchor point plan which showed the system layout of the harness-based system including anchor point locations, the number of anchor points required and the radius of travel from the anchor in relation to the fall hazards.

63. Prior to the incident Newcastle Roofing had a SWMS titled "General Roof Work SWMS”. The SWMS was incomplete and covered both tiled and metal sheet roofing. The SWMS identified the potential hazard of a fall from an unprotected edge from both metal and tile roofs. The SWMS required Newcastle Roofing to select the high-risk construction work hazards onsite and the most effective and relevant risk controls for the job, such as edge protection, harnesses, and lanyards. However, prior to the incident no items on the SWMS had been selected.

64. Prior to the incident Newcastle Roofing made the SWMS available to workers by electronic means via a Job Progress app. Workers who had access to the SWMS were prompted to electronically sign the SWMS prior to commencing work each day.

65. Newcastle Roofing’s records show the SWMS was accessed by Mr Rundle and Mr Ramage via the Job Progress app. However, Mr Anderson, Mr Roberts, Mr Allmon and Mr Holt were not provided with the SWMS.

Steps following the incident

66. After the incident, Newcastle Roofing engaged Aluminium Scaffolds to erect a scaffold system as edge protection to areas of the house where there was a risk of falls from height, including in the area where Mr Rundle had fallen.

67. On 15 November 2021, the scaffolding was installed by Aluminium Scaffolds at a cost of $4,224. Newcastle Roofing bore the costs of the erection and dismantling of the scaffold at the Site.

68. The roof rail system remained installed on the front of the house and scaffolding was installed on the side and rear elevations in the period 15 to 21 November 2021.

69. Following the incident, Mr Fowkes stayed on site for the remaining two days of work to supervise the operations.

70. Following the incident, Newcastle Roofing only accepted jobs involving single-storey residential dwellings, utilising roof rail systems on roof perimeters for all jobs.

Evidence for the Defendant

71. Mr Brendan Twist affirmed an affidavit on 23 April 2025 (DX 1). Mr Twist is the General Manager of Newcastle Roofing and has acted in that capacity since 1 January 2016. He is the husband of Ms Michelle Twist, Director of Newcastle Roofing.

72. Mr Twist has worked in the roofing industry for over 30 years.

Overview of the business

73. Newcastle Roofing commenced operations as a small company consisting of two to three administration staff and three to four roof tilers and roof painters.

74. From around 2018, Newcastle Roofing started to grow and expanded the range of services it provided to include metal roofing and guttering.

75. In order to undertake 'metal roofing' work, Newcastle Roofing engaged qualified roof plumbers to undertake this work.

76. In or about 2020-2021, Newcastle Roofing started to receive more enquiries from potential customers to do roofing work. Due to the extra demand Newcastle Roofing relocated to larger premises.

77. Due to this increased demand, Newcastle Roofing hired qualified roof plumbers to become part of the company, and particularly to undertake work as Roofing Supervisors. As part of their role, the Roofing Supervisors carried out site assessments, developed safety plans and conducted toolbox meetings for other tradespeople in their teams.

Systems of work in place prior to the Incident

78. In the early years of Newcastle Roofing operation, Mr Dale Miller (Operations Manager) and Mr Twist created a SWMS for roofing works.

79. Mr Miller and Mr Twist obtained the information for the creation of that SWMS from a number of sources, including materials on SafeWork’s website in respect of working at heights, building and construction work generally and other resources available from the internet.

80. When the SWMS was introduced, Newcastle Roofing inducted its workers through the SWMS. The SWMS was used for both tiled and metal roofing jobs.

81. Newcastle Roofing primarily relied upon the preparation of SWMSs and toolbox talks to identify the hazards relevant to the particular job, and the control measures to be implemented.

82. Newcastle Roofing’s general practice was to prepare a SWMS for the type of work to be performed (or utilise an existing SWMS that applied to that type of work) and discuss that document with the workers at the start of the project. Toolbox talks would be held with the workers at the start of each new work activity. The relevant supervisor would discuss with the workers what the new work activity involved, how it was proposed to be undertaken, any hazards or risks associated with the activity and the control measures.

83. Mr Twist found that generally this method was effective in conveying to Newcastle Roofing workers how to undertake the tasks safely.

84. Newcastle Roofing’s general practice was that the supervisor attended the work site to conduct a site assessment prior to each job. They looked at hazards, issues including access issues, the pitch of the roof and other things pertinent to the safety matters.

85. Newcastle Roofing’s general practice was that prior to performing the assessment, a harness safety plan was prepared to allow access to the roof.

86. Newcastle Roofing’s general practice was that the relevant supervisor allocated to a work crew conducted daily toolbox talks and provided daily SWMSs. The SWMSs were prepared at the office and provided to the supervisors with at least as many as would be needed for each employee at the site. They were handed out daily.

87. At some stage in 2021, Newcastle Roofing identified that its SWMS was outdated and inadequate to controls the risks.

88. Mr Miller and Mr Twist consulted with SafeWork to obtain relevant information and resources to improve Newcastle Roofing’s safety systems. Messrs Miller and Twist also sought assistance and advice from "Construction WHS Consultants".

89. In or about October 2021, Newcastle Roofing prepared a new SWMS titled 'General Roof Works SWMS'. This SWMS was designed to be a comprehensive SWMS that would cover both tiled roof works and metal roof works.

90. The General Roof Works SWMS was made available to workers via an app on their electronic devices, called 'Eversign'. All tradespeople were required to sign and return the SWMS before commencing any roofing work.

91. The General Roof Works SWMS was the SWMS in place as at the date of the Incident involving Mr Rundle.

Immediate steps taken after the Incident

92. After the Incident on 8 November 2021, Newcastle Roofing arranged at its own cost to fully scaffold the premises where the Incident occurred so the work could be finalised safely.

93. In the period after the Incident, Newcastle Roofing required the installation of roof rails on all jobs, even if they were minor repairs.

94. In the period after the Incident, Newcastle Roofing declined to take on jobs which involved the following:

1. Double storey (without at least one area of single storey access)

2. A pitch greater than 28 degrees

3. A height greater than 5 metres

4. "High glaze" terracotta tiles

Subsequent improvements

95. After the Incident, Newcastle Roofing reviewed its systems relating to its workers undertaking high risk works at height. As a result, Newcastle Roofing developed, implemented and enforced a series of measures addressing hazards and risks associated with its workers working from height. These are set out below.

96. All roofing workers were taken through the Roofing Work SWMS prior to commencing works on any sites.

97. Workers were given an opportunity to raise any concerns or issues in relation to the site or particular work activities to be undertaken during the project.

98. If new hazards and controls were identified for the project, the SWMS would be amended to include any new hazard and the controls required to address the new hazard. Workers then signed off on their knowledge and understanding of the content of the SWMS.

99. The safe work practices for working at heights that were established were followed in all further jobs. This was done by reviewing the SWMS before every new job, after the job site was viewed and assessed. The SWMS was amended and reviewed where necessary depending on the requirements and conditions of the job. The SWMS was discussed with workers during toolbox talks before each job commenced and after any updates.

100. In the period after the incident, until the change in the nature of Newcastle Roofing operations (which is discussed further below), Newcastle Roofing prioritised taking a simple and practical approach to delivering support, training and education for its workers on safety issues on every site.

101. In the period after the incident, until the change in the nature of Newcastle Roofing’s operations, Newcastle Roofing included material demonstrating the correct and safe method of work for undertaking particular tasks in its SWMS. The site supervisor was to meet with the workers onsite at the start of the job and go through the content of the SWMS, and discuss with the workers any risks relating to the particular duties being undertaken. Workers were able to ask questions or raise concerns about the way the work is to be completed and any hazards or risk that they have identified.

102. Mr Twist has found that this process achieved greater outcomes to worker engagement and safety outcomes at sites.

Change in the nature of Newcastle Roofing Professionals Pty Ltd business

103. Since April 2022, Newcastle Roofing has changed its method of operation. Newcastle Roofing now operates as a 'Sales and Marketing' company only.

104. Newcastle Roofing markets roofing services, such as leak detection, roof repairs, roof restoration (roof painting), Colorbond roofing, Colorbond guttering, gutter guard and roof ventilation for qualified roofing contractors.

105. As part of its new business model, Newcastle Roofing is structured as follows:

1. Brendan Twist, General Manager;

2. Michelle Twist, Accounts payable and Administration;

3. Jarrod Baars, Roof Plumbing Supervisor. Mr Baars has Cert Ill Roof Plumbing, White card, Qualified Supervisor Certificate and has 19 years of experience in the industry;

4. Jake Errington, Roof Tiling Supervisor. Mr Errington has Certificate Ill Roof Tiling and 13 years work experience in the industry;

5. Kevin Cournane, building supervisor; and

6. Chris Rundle.

106. There are also a series of workers who perform administration, sales and marketing work for Newcastle Roofing.

107. For a period there were also casual door-to-door marketers who worked on behalf of Newcastle Roofing.

108. Newcastle Roofing now takes inquiries from potential customers, and then schedules its qualified roof plumbing supervisor or roof tiling supervisor to assess the required work.

109. Newcastle Roofing then prepares separate quotations of the required work in relation to:

1. Materials costs.

2. Labour only costs.

110. When a customer accepts that quotation, Newcastle Roofing contacts one of its network of roofing contractors to ascertain whether they wish to perform the roofing works.

111. Newcastle Roofing no longer employs roofing workers either as direct employees or deemed employees, nor does it engage workers as roofing contractors.

112. Another entity, Newcastle Roofing Supplies Pty Ltd (Newcastle Supplies), which is owned by Mr Twist, provides the relevant materials and supplies necessary for the work to be undertaken by the client.

110. Newcastle Roofing charges Newcastle Supplies weekly for marketing fees to pay its staff.

111. Newcastle Supplies employs three workers who deliver the relevant materials and supplies to the roofing contractors and customers, perform yard hand work, and serve customers in the shop.

112. Newcastle Supplies renders an invoice to the customer for the materials and supplies, and the costs of any roof rails provided by the roof railing contractor.

113. Newcastle Roofing has taken steps to ensure that all roofing contractor companies that it deals with who provide roofing services have appropriate qualifications and accreditations.

114. The accredited roofing contractor that performs the roofing work then sends an invoice to the customer for that work.

115. Neither Newcastle Roofing nor Newcastle Supplies performs any roofing labour work.

116. In order to ensure that all roofing contracting companies who take on jobs referred to them by Newcastle Roofing will perform the work safely and to ensure quality control, where necessary, Newcastle Roofing arrange for a third-party specialist safety training, products and services provider, Combined Safety Services, to provide certification and training to those roofing contractors, particularly for working at heights.

117. Combined Safety Services is a Registered Training Organisation that offers nationally recognized safety training, professional consultancy and audit services, roof safety system installation and certification, equipment sales, hire, and inspection services.

118. As Newcastle Roofing do not carry out roofing services, and are only a sales and marketing company providing interested customers with selected accredited contractors, Newcastle Roofing engages Newcastle Supplies to organise and install roof safety rail systems for those contractors that do not have their own.

119. Where required, Newcastle Supplies also engages specialist height safety companies to install height safety equipment at job sites, in particular the installation roof safety rails for those roofing contractors who accept referrals of roofing jobs that do not have their own roof safety rails.

120. The installation of roof railings was previously done by Newcastle Roofing outsourcing that job to a company - Site Safety Pty Ltd.

121. In November 2023, Newcastle Supplies purchased various height safety equipment, including scaffolding, Guard Tile systems, and Guard Rail Barrier systems that could be supplied to roofing contractors.

122. In about June 2024, Newcastle Roofing purchased a roof safety rail truck under finance valued at $66,000.00. A copy of the invoice from Roofing Central dated 4 June 2024 for the truck and roof safety rail is exhibited to Mr Twist’s affidavit.

123. More recently, Newcastle Roofing has been referring its roofing contractors to a different roof railing company namely 'Insight Safety Solutions Pty Limited'.

124. Since approximately September 2024, there has been a decline in the level of customer interest in roofing services which has resulted in a decline in the number of customers that Newcastle Roofing have been able to successfully source for Newcastle Supplies and the third-party roofing contractors.

125. As a result of that decline, in April 2025, the employment of three members of the administration, sales and marketing team was terminated. It is anticipated that the employment of another two to three members of the administration, sales and marketing team will finish in the near future.

Support for the injured worker

129. After Mr Rundle’s accident Newcastle Roofing did what it could to ensure that he was cared for. Mr Karg went to site urgently, staying with Mr Rundle until the Ambulance attended him and left.

130. After that time, Newcastle Roofing did all things possible to expedite his Workers Compensation Claim to ensure prompt acceptance of same. Mr Twist has complied with and assisted investigation of the incident to the best of his ability.

131. During the early stages of Mr Rundle’s injury, hospitalisation and rehabilitation Newcastle Roofing kept a close eye on Mr Rundle’s progress. In particular, Mr Miller (who is no longer employed by the company), kept in close communication with Mr Rundle and attended to any Workers Compensation issues which arose.

Remorse and contrition

132. Mr Twist expressed remorse and contrition on behalf of Newcastle Roofing for the failures that exposed Mr Rundle to the hazard and risk of injury.

133. Mr Twist accepted responsibility on behalf of Newcastle Roofing for the failure to take the control measures set out in the Amended Summons, to eliminate or minimise the risk of Newcastle Roofing workers, and in particular Mr Rundle being exposed to the risk of serious injury from falling from heights.

134. Mr Twist acknowledged the serious injuries suffered by Mr Rundle resulting from Newcastle Roofing’s failure to take the control measures set out in the Amended Summons for this incident. Mr Twist never wished for a Newcastle Roofing worker to suffer any injury and expressed his sincere apologies to Mr Rundle for the injuries that he suffered.

135. As the General Manager of Newcastle Roofing, Mr Twist has endeavoured to ensure this sort of incident, or any workplace incident never happens again. While Newcastle Roofing no longer performs roofing work they ensure that their roofing contractors enforce all safety measures on roofing work marketed and offered by Newcastle Roofing.

Capacity to pay a fine

136. Newcastle Roofing submitted that it does not have a great capacity to pay a large fine as it relies on 100% of income from Newcastle Supplies. Most of any profits generated by the business are retained by the company and reinvested into the business to allow it to continue to operate.

137. Newcastle Roofing submitted that it does not have much in the way of assets. Generally, the assets of the company are its trade receivables and work in progress, and any cash in the bank is used for operational purposes. The company owns only a limited amount of plant and equipment which is essential for the ongoing conduct of the business.

138. The utility vehicles used by the business are the subject of chattel mortgages.

Consideration

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

Objective Seriousness of the Offence

140. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

141. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

142. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

143. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

144. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

145. 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. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

146. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater 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 on assessment of all those factors.”

147. Further at [42] his Honour continued:

“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 [event] 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 little, if any, costs.”

148. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

149. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was foreseen by Newcastle Roofing. Further, Newcastle Roofing had participated in a SafeWork seminar shortly before the incident, so it was fully aware of the risk. It had initially required safety rails around the periphery of the roof, but when this was not achievable, it obtained a quote for scaffolding.

2. The likelihood of the risk occurring was significant, particularly given the wet and slippery nature of the roof on the day of the incident.

3. The potential consequences of the risk were death or serious injury

4. Well known steps were available to eliminate or minimise the risk. Newcastle Roofing initially required safety rails around the periphery of the roof, but when this was not achievable, it obtained a quote for scaffolding. Newcastle Roofing asked the client to pay the additional cost of scaffolding. When the client refused, Newcastle Roofing decided to proceed, by using the lesser protection afforded by a harness and anchor point system. I infer that in taking this course Newcastle Roofing put its own financial interests ahead of the safety of its workers.

5. There was a financial burden involved in using scaffolding. With the benefit of hindsight, that cost was miniscule compared to the financial and physical burden thrust onto Mr Rundle.

6. The extent of the harm caused to Mr Rundle is little short of catastrophic. This emerges from the Victim Impact Statement discussed below.

7. The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.

150. I find that the level of culpability of Newcastle Roofing is in the mid range.

Deterrence

151. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

152. General deterrence in roofing cases is a particularly important sentencing consideration: see SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604 at [1].

153. The penalty must reflect the need for specific deterrence. Newcastle Roofing is still conducting a business. Its operations involve work in the roofing industry, including initial roofing assessments, and the engagement of roofing contractors.

Aggravating Factors

154. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

155. Newcastle Roofing has no previous convictions: s 21A(3)(e) CSP Act.

156. Newcastle Roofing is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Newcastle Roofing has been in business since 2015.

157. Newcastle Roofing has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

158. Newcastle Roofing has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Rundle was caused by its actions.

159. Newcastle Roofing entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Newcastle Roofing a 25% discount for an early plea.

160. Newcastle Roofing gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

161. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

162. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

163. A large number of financial documents were annexed to the Affidavit of Mr Twist (DX1). For the period 1 July 2024 to 11 April 2025 the Trading Statement for Newcastle Roofing disclosed that sales of $2,106,452 were achieved against the total cost of sales of $1,467,004. The gross profit for that period was $639,448, which gave a 30% gross profit margin. The Profit and Loss Statement for the same period showed a total income of $695,159. and total expenses of $480,616. Newcastle Roofing made a net profit after tax and after dividends of $214,544.

164. The Balance Sheet for Newcastle Roofing for the same period showed the following non-current assets:

1. 2022 loan to directors - $31,946

2. Loan to Newcastle Supplies - $137,946

3. Commercial loan to Keenaz - $156,359. This was a previous business venture of Mr and Mrs Twist.

165. The Balance Sheet also showed total credits in the bank of $69,859, but no liabilities to any bank by way of a loan.

166. Similar documents for Newcastle Supplies, for the same period, showed a trade income of $3,0002,827 and a net profit after tax and dividends of $209,100. The company had cash in the bank of $81,420 and no bank loans.

167. There was no submission that Newcastle Roofing did not have a capacity to pay a fine. The submission was that Newcastle Roofing is not a large company and it does not have a large income. I will take into account the size of Newcastle Roofing and moderate the fine which would otherwise be imposed. It does appear that Newcastle Roofing should be able to pay the fine from a combination of cash flow and potential borrowings from its bank.

Victim Impact Statement

168. The defendant was convicted at the sentence hearing on 29 April 2025.

169. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

170. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

171. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

172. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

173. The prosecutor tendered the short Victim Impact Statement of Mr Rundle, dated 16 April 2025 (PX 3). Mr Rundle is a 41 year-old father of six children aged between 22 years and 3 years. Four of those children have disabilities. Mr Rundle was in a new relationship at the time of the incident but this has since ended.

174. Mr Rundle described the operations, pain, anxiety and worry caused by his severe injuries. He suffers from “crippling nerve pain shooting from my foot all the way to my hip” and experiences a “burning fire sensation in my foot at night despite multiple nerve blocks and surgical treatment to cut off the sensation”. Mr Rundle can mobilise in a wheelchair but finds this painful. He has been left with few friends and little support, apart from that provided by his two adult daughters.

Costs

175. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

176. The orders are:

1. Newcastle Roofing Professionals Pty Ltd was convicted on 29 April 2025.

2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Newcastle Roofing Professionals Pty Ltd to pay a fine of $300,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Newcastle Roofing Professionals Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 02 May 2025