SafeWork NSW v Parrish Group NSW Pty Ltd

[2023] NSWDC 13

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13

Hearing dates:

2 February 2023

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Parrish Group NSW Pty Ltd is convicted.

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

(3)   Order Parrish Group NSW 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 Parrish Group NSW Pty Ltd to pay the prosecutor’s costs agreed in the amount of $37,500.

(6) I request SafeWork NSW to send a copy of this judgment to the Minister with responsibility for workplace safety, who holds office in the next government.

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 – worker fell through inadequately protected penetration in roof

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32

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 LJW Solar Pty Ltd [2022] NSWDC 526

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 2016.

WorkCover NSW Safe Work on Roofs Code of Practice, Part 1: Commercial and Industrial Buildings, 2009

SafeWork NSW Code of Practice Construction Work, April 2019

SafeWork NSW Managing the Risk of Falls Code of Practice, April 2019

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Parrish Group NSW Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
I Latham (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Barry Nilsson (Defendant)

File Number(s):

2022/89793

Judgment

1. On 31 March 2021 a risk to health and safety existed at a construction site in Kembla Grange where Parrish Group NSW Pty Ltd (Parrish) had been engaged to install a metal roof. Mr Brandon Boon, a worker on the site, fell over six metres through an inadequately protected penetration in the roof, which was then in the course of erection.

2. Parrish has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Boon to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in par 11 of the Summons is as follows:

“11. The risk was the risk of workers, in particular Mr Boon, suffering serious injury or death as a result of falling through an inadequately supported area of a roof under construction.”

Reasonably Practicable Measures

5. Paragraph 12 of the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“12.   The defendant failed to ensure so far as was reasonably practicable, the health and safety of workers, in particular Mr Boon, in that it failed to take one or more of 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:

(a)   Undertaking a risk assessment, or an adequate risk assessment, for the roof installation works, which identified the hazards and risks associated with the installation of the box gutter system, assessed the risks and determined the most effective control measures to manage the risk;

(b)   Developing, implementing and maintaining a safe method of work for the installation of the box gutter system, which specified:

i.   Gutter board was to be installed in continuous lengths from an Elevated Work Platform (EWP);

ii.   Once the gutter board was installed, inspected, and deemed safe, the workers would be permitted to access the roof to install the gutter lining;

iii.   Holes were to be cut out where the sumps were to be installed from below the roof in an EWP;

iv.   The sumps were to be immediately installed, or where the sumps were not available, the sump holes were to be securely covered and marked to indicate the presence of a penetration;

(c)   Documenting a safe method of work for the installation of the box gutter system in its Safe Work Method Statement, such as the method of work set out in paragraph (b) above;

(d)   Providing information, instruction and training to workers in the safe method of work for installation of the box gutters, such as the method of work set out in paragraph (b) above;

(e)   Provision of adequate on-site supervision to ensure a safe method of work for the installation of the box gutters was implemented and maintained, such as the method of work set out at paragraph (b) above;

(f)   Undertaking adequate inspections of the roof prior to any worker being permitted to access it in order to identify any hazards, such as penetrations, inadequately protected penetrations or unsupported guttering;

(g) Covering penetrations, inadequately protected penetrations or unsupported guttering in the roof with securely fixed covers marked to indicate their purpose as a cover.”

Background

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

7. Parrish conducted a business or undertaking which involved the provision of plumbing, roofing, maintenance and height safety services to the construction industry.

8. In October 2019 Quasar Constructions (Commercial) Pty Ltd (Quasar) engaged Parrish to install a metal roof and associated cladding on a construction site in Kembla Grange. Quasar was the principal contractor for the construction of a new warehouse at the site.

9. Under the terms of the contract between Quasar and Parrish, Parrish was to supply all necessary resources to construct the roof, including labour, plant, materials and supervision.

10. Parrish engaged Mr Jack McDonald as a Team Leader and Site Supervisor. Mr McDonald worked exclusively at the site.

11. Parrish engaged subcontractors to complete the labour component of the roofing works. It engaged Modern Roofing & Facades Pty Ltd (MRF). MRF was required to adhere to the Parrish work health and safety policies and procedures. MRF engaged a number of workers to complete the roofing work, including Mr Boon.

12. The roof to be constructed at the site was approximately 240m long and 85m wide. The roof was designed with an internal box gutter drainage system positioned along northern and southern parapet walls. The box gutters were 800mm wide. Approximately 37 sumps were required to be installed in the box gutters at intervals.

13. The roof structure was accessed via a set of scaffold access stairs in the north-east corner of the building. Mr McDonald and Quasar personnel were the only persons who were able to provide access to the roof via the stairs.

14. The defendant required the MRF workers to sign onto its Safe Work Method Statement (SWMS). The SWMS did not set out the sequence of work for the installation of the box gutters. The job step relevant to installing the gutters stated that all work was to be undertaken using an Elevated Work Platform (EWP), however this was not practical. The work required workers to access the roof to install the gutter lining.

15. The installation of the roof was to be undertaken in six sections, from the eastern elevation towards the west. As at 24 February 2020, the wire mesh between the purlins of the first part of the roof had been installed. The MRF workers commenced installing the box gutters for that part of the roof.

Initial Method of Installation

16. The MRF workers initially installed the box gutters by:

1. Installing gutter board (corrugated metal sheeting) in continuous lengths onto brackets from below the roof using EWPs.

2. Accessing the roof to install the gutter lining.

3. Removing sections of the gutter board and lining from below the roof using EWPs to enable the sumps to be installed.

17. The installation of the gutter boards in this manner meant that when the workers accessed the roof to install the gutter lining, they were working in an area where there was no risk of a fall, as there was continuous gutter board beneath their feet. The box gutters were installed in this manner from around 24 February 2020 until mid-March 2020.

Changed Method of Installation

18. From mid-March 2020 the method of installing box gutters changed. Rather than installing continuous length of gutter board, the workers left gaps in the gutter board in places where the sumps were to be installed. The gutter lining was lapped over the gaps where sumps were to be installed. The gutter lining over the sump hole was marked with a red marker to indicate the place where the sump was to be installed.

19. This method of work was quicker, but it required workers to work in proximity to the hazard of an inadequately supported area of the roof, being the inadequately protected holes where sumps were to be installed. These “sump holes” were approximately 800mm x 800mm.

20. The gutter lining was not structurally rated to support the weight of a person, but where it was adequately placed over a sump hole it could be stepped upon. However, there were occasional sections where sheets of gutter lining overlapped directly over the gap in the gutter board. At these points anyone who stepped on the gutter lining could fall through the sump hole.

21. The defendant was aware of the changed method of work and during the pre-incident toolbox talks reminded workers of the need to maintain awareness of the hazard. However, it took no steps to create a new SWMS or cover the penetrations.

The Incident

22. On 31 March 2020 Mr Boon and a co-worker were riveting gutter lining to the gutter board on the southern elevation of the roof. Mr Boon stepped on a section of unriveted gutter lining which was unsupported by gutter board, above a gap where a sump was to be installed. Mr Boon fell 6.8 metres, through the unsupported section of the gutter lining, to the concrete slab below.

23. Mr Boon suffered serious injuries including a right foot fracture and dislocation, a left shoulder dislocation and an L5 vertebral compression fracture.

24. The above summary of the methods of work and the incident comes from the Prosecutor’s Outline of Submissions (MFI 1). I have read the Agreed Statement of Facts (PX 1, Tab 2) and all of the other material included in the Prosecution Sentence Tender Bundle (PX 1). I am satisfied that the summary of the facts given by counsel for the prosecutor is accurate and I adopt it.

Systems of Work Before the Incident

25. Parrish did not undertake a risk assessment in respect of the changed method of work. Had a risk assessment been undertaken, the hazard of the inadequately supported areas in the gutter lining where sumps were to be installed would have been identified and assessed. Parrish could have determined the most adequate controls to manage the risk, so far as is reasonably practicable. Instead, the changed method of work relied upon workers maintaining awareness of the areas of unsupported guttering where sumps were to be installed and marking the areas where sumps were to be installed.

26. Parrish did not maintain a safe method of work for the installation of the box gutters.

27. Parrish could have consulted with MRF and developed, and documented in its SWMS, a safe method of work for installing the box gutters. Parrish could have provided information, instruction and training to workers on the safe method of work to be implemented at the site.

28. Parrish could have provided adequate supervision to the MRF workers to ensure they implemented and maintained followed a safe method of work for installing the box gutters.

29. Parrish could also have undertaken inspections prior to allowing workers to access the roof to check for hazards, such as penetrations, inadequately protected penetrations, unsupported guttering and gaps in gutter boards. Any identified penetrations could have been securely covered.

System of Work After the Incident

30. Following the incident Parrish, in consultation with MRF, reviewed its systems of work and revised its SWMS.

31. The revised SWMS (PX 1, Tab 18) included a new job step of “Installation of box guttering and associated supports”. The revised SWMS specified the following controls measures:

“Gutter support brackets to be installed at approximately 650mm centres with an 800mm space to be left for the sump installation;

Gutter support board to be installed in a continuous length between sump openings, with an additional length to be installed over the sump opening the minimum lap of 200mm on each side which is retained with minimum of two screws in each lap (Note: cover sheet is to be removed from underneath when sumps are installed);

Prior to commencement of the installation of the box gutters, support board to be checked to ensure that no physical holes or gaps exist;

Box gutter section is to be laid with 150mm laps which are to be riveted and fixed as per specification (Note - there is to be no joints in the box guttering within the vicinity of sumps).”

32. In respect of the job step of “Access to roof from the scaffold tower”, the SWMS contained the following control:

“Hold Point

No access to roof area permitted until the following are in place:

- Safety wire is completed and signed off;

- Gutter boards are installed and complete;

- Edge protection is complete with handover issued ...”

33. Parrish provided workers with instruction and training on the revised SWMS.

34. Parrish increased its site safety inspections to twice a week. The inspections were conducted by Parrish’s WHS Manager, Mr Bowley. Parrish also increased random site safety inspections across its roofing division.

35. In or around June 2020 Parrish engaged MRF to undertake the installation of another warehouse at South Nowra. The above system of work was documented in a SWMS and implemented to complete those works.

Guidance Material

36. The Agreed Statement of Facts makes reference to and summarises the following documents:

1. SafeWork NSW Managing the Risk of Falls Code of Practice, April 2019 (PX 1, Tab 14).

2. SafeWork NSW Code of Practice Construction Work, April 2019 (PX 1, Tab 15).

3. Safe Work Australia Safe Work on Roofs Information Sheet, January 2016 (PX 1, Tab 17).

4. WorkCover NSW Safe Work on Roofs Code of Practice, Part 1: Commercial and Industrial Buildings, 2009 (PX 1, Tab 16).

37. This guidance material drew attention to the risk of a fall from height as a result of roofing work, and in particular drew attention to the need to properly guard penetrations in a roof so that workers would not fall through them.

Evidence for the Defendant

38. The defendant tendered the affidavit of Mr Scott Bowley dated 25 January 2023 (DX 1). Mr Bowley is the Maintenance, Workplace Health & Safety and Human Resources Manager of Parrish.

39. Parrish was established in May 2007 and is based in South Nowra. It currently has 43 employees and provides plumbing, roofing and maintenance services for both residential and commercial clients.

40. Mr Bowley outlined the steps he has taken since becoming the WHS Manager for Parrish. In 2016 Parrish engaged Employsure Pty Ltd to provide WHS advice and supply WHS documentation. A WHS report was prepared every month for each site. Audits and inspections were carried out on a monthly basis.

41. Mr Bowley set out in par 28 of DX 1 the steps he has taken to improve work health and safety in the workplace since the incident.

42. Mr Bowley set out in pars 29-41 of DX 1 the contribution which Parrish makes to charities and local organisations.

43. In pars 43-48 of DX 1 Mr Bowley expresses the regret and deep remorse of Parrish and its management for the injury caused to Mr Boon and his family. Parrish unreservedly accepts that it allowed Mr Boon to be exposed to risks to his health and safety and offers an unqualified apology for its breach of the Act.

Consideration

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

Objective Seriousness of the Offence

45. 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].

46. 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].

47. 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.”

48. 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].

49. 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.

50. 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.

51. The Court of Criminal Appeal has examined the sentencing process with regard to the 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.”

52. 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.”

53. At [53] his Honour 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 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.”

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

1. The risk of a fall through the inadequately protected penetration was foreseeable and indeed was actually known to Parrish. Further, there was ample guidance material relating to the very risk which came into existence.

2. The likelihood of the risk occurring was significant. A fall through the inadequately guarded penetration could occur not only by a worker deliberately stepping onto the lapped gutter lining over a sump penetration, but could occur by a worker who was concentrating on a roofing task inadvertently stepping or falling onto the gutter lining.

3. The potential consequences of the risk are obvious. The risk could lead to death or serious injury, as occurred in the present case.

4. There were steps available to eliminate or minimise the risk. By its plea, Parrish has accepted that it could and should have taken each and every step particularised in par 12 of the Summons.

5. There was little or no burden or inconvenience of taking the requisite steps. Parrish improved its safety practices immediately after the incident and as a result of it. There was no evidence of any cost in doing so.

6. The injuries caused to Mr Boon were serious and extensive. There was no Victim Impact Statement so the court has nothing else except the list of the injuries suffered.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. MRF, which engaged Mr Boon and other workers on the site, also had a duty to comply with the Act. It made a significant contribution to the creation of the risk. However, the Act provides that safety duties cannot be delegated (s 14), and that each individual duty holder must discharge its duty to ensure safety (s 16). Parrish failed to do so.

55. I find that the level of culpability of Parrish is in the mid range.

Deterrence

56. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the 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].

57. In SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526 Judge Strathdee said at [58]:

“The frequency with which this Court deals with SafeWork prosecutions that involve a worker falling from height is not decreasing, and the devastation and harm that can and is caused by this dereliction of the duties imposed by the Act is a matter which I find very concerning. The attention of employers in circumstances such as this needs to be focussed and heightened, as the risk was so obvious.”

58. Further to her Honour’s comments and concerns, I note that the cases from recent years set out in the following table all involve falls from roofs leading to death or serious injury:

[2022] NSWDC 574	SafeWork NSW v SLD Projects Pty Ltd	Multicompartmental brain haemorrhage, skull fractures, left distal transverse sigmoid and proximal IVJ thrombosis, hearing issues, loss of feeling in the fingertips, epilepsy caused by brain scarring and vertigo.
[2022] NSWDC 524	SafeWork NSW v Leda Form Group Pty Ltd	Death.
[2022] NSWDC 526	SafeWork NSW v LJW Solar Pty Ltd	Burst fracture and left interior pubic ramus (pelvis) fracture.
[2022] NSWDC 437	SafeWork NSW v Empire Contracting Pty Ltd	Death.
[2022] NSWDC 407	SafeWork NSW v Advanced Roofing Sydney Pty Ltd	Multiple traumatic injuries to upper limbs, lower limbs and face.
[2022] NSWDC 290	SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse	Fractured rib, multiple pelvic fractures and a fractured wrist.
[2022] NSWDC 175; [2021] NSWDC 707	SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd; SafeWork NSW v Lewin Roofing Pty Ltd	Three vertebrae fractures in neck, fractured skull, subdural/extradural haematoma to brain and T2 endplate fractures.
[2021] NSWDC 258	SafeWork NSW v PV Solar Pro Pty Ltd	Death.
[2021] NSWDC 86; [2020] NSWDC 776	SafeWork NSW v CCP Remedial Pty Ltd; SafeWork NSW v MACFIN Building Solutions Pty Ltd	Death.
[2021] NSWDC 44; [2020] NSWDC 774	SafeWork NSW v Easy Fall Guttering Pty Limited; SafeWork NSW v Aceline Plumbing Group Pty Ltd	Serious spinal injuries.
[2020] NSWDC 420	SafeWork NSW v Landmark Roofing Pty Ltd (No.2)	Death.
[2020] NSWCCA 319	Attorney General v Jamestrong Packaging Australia Pty Ltd	Death.
[2018] NSWDC 387	SafeWork NSW v The Austral Brick Co Pty Limited	Death.
[2018] NSWDC 350	SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous	Death.
[2018] NSWDC 61	Safe Work NSW v Co-Wynn Building Contractors Pty Ltd	Death.
[2018] NSWDC 104; [2017] NSWDC 285	SafeWork NSW v Powell; SafeWork NSW v Tolputt	Fractured shoulder.
[2018] NSWDC 60	Safe Work NSW v Christopher Michael Butler; Safe Work NSW v Edgesafe Pty Ltd	Neck, back and wrist fractures, bowel tear and spleen laceration.
[2017] NSWDC 340	SafeWork NSW v CTN Construction Pty Limited	Traumatic brain injury, fractures to skull and facial bones, punctured lung, fractured collarbone and minor neck fractures.
[2014] NSWDC 183	WorkCover Aurtority of NSW v Australian Native Landscapes	Fractured left pelvis, two punctured lungs, four fractures of left arm and cuts and abrasions to head
[2015] NSWDC 295	Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam	Fracture to the spine causing spinal cord damage and tetraplegia.

59. Roofing is a dangerous industry if businesses do not comply with their duty under the Act to ensure safety. The number of roofing cases coming before this court has increased dramatically in the last two years. But for the fact that there is a State election next month, I would have directed the Registrar to send a copy of these remarks to the appropriate Minister. In the hope that the concerns of the court can be raised with the executive and the legislature, I request SafeWork NSW to send a copy of this judgment to the Minister with responsibility for workplace safety, who holds office in the next government. The attention of the Minister should be drawn to the table in par 58 above.

60. The penalty must reflect the need for specific deterrence. Parrish is still in the roofing business and its operations involve the continuing engagement of employees who are expected to work at height. Specific deterrence is also a relevant factor in this case because Parrish has a prior conviction for a breach of duty under the Act. This is dealt with more fully below.

Aggravating Factors

61. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

62. Parrish has a record of a previous conviction: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Parrish was convicted in the Local Court on 29 January 2021 in relation to a breach of s 19(1) of the Act which took place on 3 August 2018 (PX 1, Tab 4). That case involved a young worker who fell off a roof, after he leant upon an inadequately constructed and installed guard rail (PX 1, Tab 6). Thus, that prosecution involved a fall from the side of a roof rather than through a roof. That event pre-dated the incident which is the subject of these proceedings.

Mitigating Factors

63. Parrish is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Parrish has been in business for approximately 16 years.

64. Parrish is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

65. Parrish has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. 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.

66. Parrish has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Boon was caused by its actions.

67. Parrish entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. 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) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Parrish a 25% discount for an early plea.

68. Parrish gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

69. 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.

70. 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.”

71. There was no submission about capacity to pay, so this issue does not arise.

Costs

72. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the amount of $37,500.

Penalty

73. My orders are:

1. Parrish Group NSW Pty Ltd is convicted.

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

3. Order Parrish Group NSW 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 Parrish Group NSW Pty Ltd to pay the prosecutor’s costs agreed in the amount of $37,500.

6. I request SafeWork NSW to send a copy of this judgment to the Minister with responsibility for workplace safety, who holds office in the next government.

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Decision last updated: 08 February 2023