SafeWork NSW v Prime Metal Roofing Pty Ltd

[2023] NSWDC 15

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Prime Metal Roofing Pty Ltd [2023] NSWDC 15

Hearing dates:

16 December 2022

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Prime Metal Roofing Pty Ltd was convicted on 16 December 2022.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Prime Metal Roofing Pty Ltd to pay a fine of $375,000.

(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 Prime Metal Roofing Pty Ltd to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – duty cannot be delegated or transferred – more than one person can have a duty

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

COSTS – prosecution costs

OTHER – defendant conducted a business or undertaking that involved providing labour to metal roofing companies – worker suffered fatal injuries in the course of dismantling edge protection on roof – worker electrocuted following contact between energised powerlines and steel handrail he was holding – second worker suffered severe flash burns to legs – failure to verify site-specific risk assessment conducted – failure to verify power lines were de-energised prior to work – failure to verify adequate safe work method statement was provided, implemented and enforced – failure to prohibit workers dismantling edge protection in proximity to energise power lines

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Corporations Act 2001 (Cth), s 601AH

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 17, 19, 32

Work Health and Safety Regulation 2017 (NSW), cll 166, 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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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 Perry’s Roofing Pty Ltd [2022] NSWDC 261

SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling

Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electric Lines, 2014

WorkCover NSW, Code of Practice - Construction Work, July 2014

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

WorkCover NSW, Code of Practice - Work Near Overhead Power Lines, July 2006

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Prime Metal Roofing Pty Ltd (Defendant)

Representation:

Counsel:
P Gow (Prosecutor)
Self-represented by directors Mr Holloway and Mr Marmont (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)

File Number(s):

2021/00033197

Judgment

1. Prime Metal Roofing Pty Ltd (Prime Metal) was a person conducting a business or undertaking (PCBU) that involved providing labour to metal roofing companies. On 11 February 2019 a 25-year-old worker, Mr Joel White, suffered fatal injuries in the course of dismantling edge protection on a roof. He was electrocuted following contact between energised powerlines and a steel handrail he was holding. A worker standing nearby, Mr Morris Higham, also suffered severe flash burns to his legs.

2. Prime Metal 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 White and Mr Higham 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.

Work Health and Safety Duties Cannot be Delegated

4. Section 19(1) of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers.

5. Section 17 of the Act provides as follows:

“17 Management of risks

A duty imposed on a person to ensure health and safety requires the person--

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

6. Section 14 of the Act provides as follows:

“14 Duties not transferrable

A duty cannot be transferred to another person.”

7. Section 16 of the Act provides:

“16 More than one person can have a duty

(1) More than one person can concurrently have the same duty.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3) If more than one person has a duty for the same matter, each person--

(a) retains responsibility for the person's duty in relation to the matter, and

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

8. It is plain from those provisions that a PCBU cannot rely upon other PCBUs working on a project to ensure health and safety. Each PCBU on the project has an individual and non-delegable duty to ensure safety. In this case the fatal incident occurred only two months after the company was incorporated. Both Mr Holloway and Mr Marmont were young men with little or no commercial experience. While each had worked as a roofer, Prime Metal seems to have had no work health and safety system of its own. Rather, it relied upon the work health and safety system of others on the site. In this case, those others were Riverwall Constructions Pty Ltd (Riverwall) and Perry’s Roofing Pty Ltd (Perry’s Roofing).

9. When there are multiple trades working on a site, and several PCBUs are involved, safety should be enhanced rather than put at risk. This is because each PCBU has an individual duty to ensure safety. In this case, if even one of the PCBUs on site had carried out its obligations under the Act, then the incident would not have happened.

10. Prime Metal had a particular responsibility to the workers on the roof, as they were employees of Prime Metal. Both the criminal law and the common law imposes a non-delegable duty upon employers in respect of employees. Mr Holloway and Mr Marmont were inexperienced in commercial matters, naïve and trusting. Prime Metal should have had its own safety systems and was obliged to take proactive steps to ensure the safety of its workers on the roof. It failed to do so.

Corporate Status of Prime Metal

11. Prime Metal was incorporated and registered on 5 December 2018.

12. The incident which is the subject of these proceedings occurred on 11 February 2019.

13. The Summons in these proceedings was filed on 4 February 2021.

14. The prosecutor and the defendant appeared before the court on directions hearings on 11 occasions prior to 29 April 2022, when leave was granted to the prosecutor to file in court an Amended Summons and an Agreed Statement of Facts and a plea of guilty was entered. The matter was set down for a sentence hearing before me on 21 July 2022.

15. On 15 July 2022 the parties again appeared before the court. The defendant company was represented by counsel. The following orders were made:

1. Note that the defendant was deregistered on 21 August 2021 and that any steps taken in these proceedings since deregistration are a nullity.

2. Vacate the sentence hearing on 21 July 2022.

3. Grant liberty to the prosecutor to approach my Associate by email to relist the matter before me.

16. The parties appeared again before me on 31 October 2022. The defendant was represented by Mr Holloway, a director. By that date ASIC had reinstated the company to the register. The matter was then listed for a sentence hearing before me on 16 December 2022.

17. Prime Metal was reinstated to the register by ASIC pursuant to s 601AH of the Corporations Act 2001 (Cth).

18. At the sentence hearing before me on 16 December 2022 Prime Metal was self-represented. Mr Holloway and Mr Marmont, the two directors of Prime Metal, were granted leave to appear for the company and represent it on the hearing. Both directors confirmed that Prime Metal entered a plea of guilty to the Amended Summons which had been filed in court on 29 April 2022.

The Risk

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

“11. The risk was the risk of workers, in particular, Mr White and Mr Higham, suffering serious injury or death, as a result of electric shock or electrocution, as a consequence of equipment or materials they were handling coming into contact with, or in close proximity to, energised overhead power lines.”

Reasonably Practicable Measures

20. Paragraph 12 of the Amended 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 is reasonably practicable the health and safety of workers, in particular, Mr White and Mr Higham, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it was not reasonably practicable to eliminate) the risk:

a. Verify that Riverwall or Perry’s Roofing had conducted a site specific risk assessment that:

i. included an actual assessment of the height of the power lines at the site and the distance of the power lines at the site; and/or

ii. identified the hazards and risks involved in the task of erecting and dismantling edge protection on the roof at the site (the task), in particular, a risk assessment which identified the risk of steel handrails coming into contact with, or in close proximity to, power lines at the site; and

iii. identified the distance from which the installed edge protection would be from the power lines.

b. Verify that Riverwall or Perry’s Roofing had made arrangements for the power lines to be de-energised, prior to the roofing works being undertaken;

c. Verify that Riverwall or Perry’s Roofing had provided, implemented and enforced an adequate Safe Work Method Statement (SWMS) which identified the hazards and risks associated with the power lines and their proximity to the site, which also described the control measures to address the hazards and risks, and how those measures were to be implemented, monitored or reviewed.

d. Prohibit workers from erecting and dismantling the edge protection on the roof, or handling equipment or material through which electricity could be conducted, within 4 metres of the power lines while the power lines were energised.”

Background

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

Relevant Parties

22. Riverwall was a PCBU which primarily performed insurance construction, repair and reinstatement work for major insurance companies. Riverwall employed 38 workers.

23. Riverwall was engaged by Procare Loss Adjusting Pty Ltd (Procare), the loss adjustors of an insurer, to replace three roofs of a brick warehouse in Moorebank (the site) which had suffered hail damage.

24. Riverwall engaged Perry’s Roofing to replace a hail-damaged roof at the site.

25. Perry’s Roofing conducted a business or undertaking involving residential and commercial roofing work including slate roofing and asbestos removal. Mr Grant Perry was the sole director of Perry’s Roofing and had been for six years. Perry’s Roofing employed eight workers.

26. Perry’s Roofing engaged Prime Metal to supply labour to perform the roofing work.

27. Prime Metal conducted a business or undertaking providing labour to carry out roofing work for metal roofing companies.

28. HiVis Boys Pty Ltd (HiVis Boys) conducted a business or undertaking as a labour hire company. HiViS Boys supplied workers and subcontractors to various roofing companies and employed approximately 30 casual workers. Ms Cassandra Perry was the sole director of HiVis Boys. Ms Perry is the sister of Mr Perry. HiVis Boys and Perry’s Roofing operated as an integrated business from the same address.

Personnel at the Site

29. Mr Chris Dedes was a construction manager for Riverwall. He was the site foreman for the project at the site.

30. Mr Fotios Mamasioulas and Mr Sotirios Mamasioulas were directors of Riverwall. Mr Andrew Mamasioulas was the Chief Operating Officer of Riverwall.

31. Mr Kieren Holloway and Mr Michael Marmont were directors of Prime Metal. Mr Holloway was a qualified roof plumber with seven years of experience. Mr Marmont was not a qualified roof plumber but had done roofing work for four years.

32. Mr White was engaged by Prime Metal as a labourer. He had been engaged by Prime Metal since 17 December 2018.

33. Mr Higham was engaged by Prime Metal as a labourer. He was engaged by Prime Metal two days prior to the incident.

34. Mr Derick McKenzie, Mr Warren Irving and Mr Daniel McKee were subcontractors employed by Prime Metal to undertake work for Perry’s Roofing.

35. HiVis Boys engaged Mr Jayden Donovan, Mr Michael Perry and Mr William McAskill to perform roofing work at the site.

Engagement of Works

36. Procare sought three quotes to replace the damaged roof. Riverwall tendered and was eventually appointed by the insurer to replace three roofs at the site. Its tender recorded that Riverwall would oversee the project and supervise it.

37. On or about 21 December 2018 Procare contacted Riverwall requesting “Make Safe” works to fix the damage at the site.

38. On 21 December 2018 Mr Dedes attended the site and conducted a visual inspection of the internal damage to the roof.

39. On 21 December 2018 Riverwall requested Perry’s Roofing to attend the site to do an evaluation of the external damage and provide a quote to repair or replace the roof.

40. Perry’s Roofing submitted a quote to Riverwall dated 21 December 2018 for $212,965.50 to replace the hail-damaged asbestos roof.

41. Once the “Make Safe” works were complete, Procare conducted a tender process to replace the roof.

42. Riverwall submitted a Tender Submission to Procare dated 4 January 2019 to carry out the re-instatement of the hail-damaged roof and associated works in accordance with its site inspection for a total amount of $268,705.80. The quote from Perry’s Roofing was incorporated into Riverwall’s Tender.

43. Procare subsequently requested Riverwall to provide a roof report. Riverwall engaged Perry’s Roofing to attend the site for this purpose.

44. On 15 January 2019 Perry’s Roofing provided Riverwall with a roof report which annexed several photographs of the damaged roof. The roof report was then provided to Procare.

45. Mr Dedes prepared Riverwall’s Approved Scope of Works document dated 21 January 2019.

46. Mr Dedes, on behalf of Riverwall, prepared a Project Plan document for the works and obtained copies of Perry’s Roofing’s SafeWork NSW permits and licences, as well as the Perry’s Roofing’s Safe Work Method Statement (SWMS).

47. Riverwall gave Perry’s Roofing a Work Order No. 9735 to complete the works described in the Perry’s Roofing’s quote. The works were to commence from midday on 31 January 2019.

48. Perry’s Roofing then subcontracted Prime Metal to supply labour to remove and replace the roof at the site.

49. This engagement was done via a text message sent from Mr Perry to Mr Holloway on 5 February 2019 with a photo of a quoted price for the job. Prime Metal was told by Mr Perry to invoice HiVis Boys for the work done at the site.

The Site

50. At the front of the site was Regent Crescent and at either side were neighbouring buildings. The incident occurred on the roof at the rear right corner of the warehouse at the site.

51. The sloping roof of the warehouse was approximately 11 metres high. At its lowest point (measuring from the ground to the eaves and guttering) the roof measured approximately 8.6 metres.

52. To the rear of the warehouse was a grassed area with a line of power poles carrying energised overhead power lines of 11,000 volts (the power lines). The closest power line was measured at 2.4 metres from the rear of the warehouse. This was the area in which the incident occurred.

53. The power lines were visible from the roof of the building and were also visible from street level in Regent Crescent at the front of the building. However, depending on where a person was located on the roof of the building, the level of visibility and proximity of the power lines differed.

Work at the Site

54. On 2 February 2019 Mr Dedes, Mr Perry, Mr Holloway and Mr McAskill, met on site to discuss the manner in which the works were to be carried out.

55. On 7 February 2019 work commenced at the site. This work involved removing the gutters on the warehouse so that edge protection could be installed.

56. On 8 February 2019 Mr McAskill installed edge protection using a scissor lift around the sides of the roof of the warehouse to protect workers from falls. There was no edge protection installed at the rear of the warehouse (along the edge closest to the power lines). The edge protection was owned by Perry’s Roofing.

57. A plate was connected to the fascia,. A “T” bracket connected to that plate which was then attached to a vertical post. Two rails were then placed horizontally through the vertical posts and clamped in place to form the completed edge protection. The top rail of the edge protection (which Mr White was holding when electrocuted) was a 6.47m x 25mm steel box section tube (the handrail).

58. A boom lift was used to transport equipment and material to the roof. To install the edge protection near the rear of the building, Mr McAskill climbed out of the boom lift and onto the roof, as a scissor lift did not fit down the side of the warehouse.

59. Two apprentices assisted Mr McAskill in installing the edge protection.

60. While installing the edge protection Mr McAskill had seen that there were power lines at the rear of the warehouse. However, he thought the power lines were a safe distance away from the rear of the roof of the warehouse.

61. It was planned that Mr McAskill would return to the site to remove the edge protection at the end of the installation of the new metal roof. However, he was sent to another job and had to remain at a different location.

The Incident

62. On 8 February 2019 Prime Metal started work at the site. Mr Holloway had 10 people working on the roof of the warehouse, including Mr White and Mr Higham.

63. On 9 February 2019 there were 20 workers replacing asbestos roof sheeting with new roof sheets.

64. On 10 February 2019 work continued on the roof of the warehouse.

65. On 11 February 2019 there were seven workers engaged by Prime Metal performing roofing tasks on the roof.

62. On the afternoon of 11 February 2019, as the workers were finishing up on the roof, Mr White asked Mr Holloway and another Prime Metal worker, Mr Troy Irwin, if there was any other work that they could undertake prior to finishing for the day. Mr Irwin suggested screwing off or loosening the bolts of the handrails, so that they would be ready to be taken down the next day.

63. Mr Higham and Mr White proceeded to remove the metal handrails of the edge protection while standing on the roof.

64. Mr Higham saw Mr White slide the top rail off towards the end of the roof where the power lines were and said to Mr White, “Slide it back the other way so you’re not counter levering it off the side of the roof”. Mr White said, “It’ll be ok”. Mr Higham replied, “Whatever”.

65. Mr Higham then began to slide the bottom rail out away from the power lines.

66. As Mr White slid the handrail out Mr Higham saw that the handrail was getting closer to the power lines and he said, “Stop, stop, the power lines”. Mr White looked over to the end of the handrail.

67. Mr Higham saw that the handrail was very close to the power lines and a white light appeared between the power line and the handrail. He said it looked like the handrail was “sucked” towards the power lines. The handrail and the power lines then connected.

68. Mr White had both hands on the handrail and began shaking and screaming and after a few seconds he went stiff and fell on his back, still holding the handrail in both hands with one end resting on his stomach and the other end resting on the power line.

69. Mr Higham was approximately two metres away when Mr White fell on his back. He ran over and tried to kick the handrail out of Mr White’s hands with his right leg. He heard a loud explosion and received flash burns to his legs which forced him back. He saw flames coming off Mr White’s chest to about 50cm in height.

70. A later examination showed burns on the handrail and also on Mr White’s body where the handrail was lying across his stomach area. There were burn marks on the roof where Mr White had stood. Mr White died on the roof.

71. Fire and Rescue NSW contacted Endeavour Energy who attended the site and isolated the power line.

72. Mr Higham suffered serious “partial-thickness, non-circumferential” burns to both legs and spent two weeks in Concord Hospital. He returned to hospital twice weekly for a change of dressing and was regularly seeing a psychiatrist to deal with the trauma of the incident.

Systems of Work Before the Incident

Riverwall

77. Riverwall had in place a Project Plan that included site-specific work health and safety information for the site. The Project Plan stated that Riverwall was responsible for risks related to its work and for those specified under its responsibilities as a principal contractor under the Work Health and Safety Regulation 2017 (NSW) (the Regulation). It stated that subcontractors must provide Riverwall as principal contractor with a copy of their SWMS for high risk construction work activities.

78. The Project Plan specified that the Construction Manager (which was Mr Dedes) was to “inspect the site prior to work commencement” and to “record and assess site specific risk and propose additional site-specific controls related to the project”.

79. The Project Plan did not contain any reference to the existence or risk of power lines at the site.

80. The Scope of Works (SOW) dated 17 January 2019 prepared by Silver Wolf Projects Pty Ltd, which was commissioned by Procare, indicated in the Notes that services were required to be isolated for a safe working space. It annexed photographs which showed the power lines at the rear of the warehouse. Riverwall received the SOW on 7 February 2019.

81. Endeavour Energy did not receive a request for a quote from Riverwall to isolate the power lines prior to the incident.

82. Riverwall’s WHS Manual required that a subcontractor’s SWMS be site-specific. Mr Dedes requested Perry’s Roofing to complete a site-specific SWMS for the re-roofing of the building.

83. On 7 February 2019 Mr Dedes obtained the SWMS from Perry’s Roofing titled “Asbestos re-roofing”. Mr Dedes conducted a review of the SWMS to check that it had been signed by the relevant workers and that it was site-specific.

84. The SWMS identified the potential hazard of electrocution during the task of laying blankets, roof sheets and flashing. It specified the control measure of ensuring that leads and tools were tagged and suspended off the ground.

85. The SWMS did not refer at all to the power lines at the site.

86. The “Construction Work Site Checklist” against which the SWMS was checked was completed by Mr Dedes on 9 February 2019. It did not mention power lines.

87. Riverwall did not identify the risk of power lines at the site.

88. No changes to the SWMS were requested by Mr Dedes.

89. Mr Dedes was the only person from Riverwall who attended the site prior to the incident. He visited the site on 32 occasions between 21 December 2018 and the date of the incident. He stated that did not see the power lines in close proximity to the roof at the rear of the warehouse.

90. Mr Dedes conducted site inductions for some of the workers. However, Mr Dedes did not raise the risks associated with electricity or the existence of the power lines at those inductions.

91. Toolbox talks were conducted by Mr Dedes. However, Mr Dedes did not raise the risks associated with the power lines.

92. Riverwall had engaged Perry’s Roofing to complete roofing repairs on other jobs in the months prior to the incident on 11 February 2019.

93. On some of those jobs Perry’s Roofing had notified Riverwall that overhead power lines had been identified as a hazard.

94. On those occasions Riverwall made the necessary arrangements to have tiger tails installed on the power lines or to have the power lines de-energised. Tiger tails are a useful indicator of the presence of power lines. However, they do not protect a worker from the risk of electrocution or electric shock.

Mr Dedes

95. Mr Dedes had been employed by Riverwall in the period 2009-2010 and from 2014 to the date of the incident.

96. Mr Dedes had over 30 years experience in the construction industry and held the following certificates:

1. Builders Business Management Course (1993).

2. Elevating Work Platform Association Yellow Card (2007).

3. OHS General Induction in Construction Work in New South Wales (2008).

4. Certificate IV in Building and Construction (Building) (2012).

5. Diploma of Building and Construction (Building) (2012).

6. Applied First Aid.

97. Mr Dedes’ role as Riverwall’s Construction Manager was to manage the logistics for the works. This included coordinating with the insurer, the insured and the contractors to ensure the construction work was completed in accordance with the approved SOW.

98. Mr Dedes attended the site daily to ensure work was progressing, to provide progress reports and photographs to the insurer and to ensure the factory was kept secure at the end of each day.

99. On 21 December 2018 Mr Dedes visited the site to conduct a visual inspection of the internal damage to the roof of the building as part of the “Make Safe” works. During the inspection, Mr Dedes identified the need to contract a hygienist from Enviro-Net Australia Pty Ltd, an asbestos contractor to monitor the asbestos levels and remove the asbestos from inside the warehouse. Mr Dedes requested Perry’s Roofing to attend the site to do an evaluation of the roof.

100. On 9 February 2019 Mr Dedes completed a Construction Work Site Checklist for the internal factory.

101. On the same date Mr Dedes asked workers on site to sign a “Record of a Toolbox Talk”. However, there was no toolbox talk held or any discussion about hazards on site.

102. On 8 February 2019, during one of Mr Dedes’ visits at the site, he told Mr Holloway that a boom lift was too close to the power lines at the front of the building and that the boom lift needed to be moved. During that discussion, Mr Irving said to Mr Dedes:

Mr Irving: “You know the power lines out the back are dangerously close, like really close to the building.”

Mr Dedes: “I don’t recall power lines out the back.”

Mr Irving: “Yeah, they are out the back and they are pretty close to the building.”

Mr Dedes: “Oh really, just don’t go near them.”

103. The conversation occurred at the left side of the site. Mr Daniel Te Riini, another worker of Prime Metal, overheard some of the above conversation and recalled Mr Dedes saying, “Don’t worry about it, just don’t touch them”.

104. Mr McKenzie was also present on site and heard Mr Irving raise concerns to Mr Dedes about the power lines being too close and that they were afraid to take the steel barge off the end. Mr McKenzie recalled Mr Dedes’ response was, “Just don’t go near them”.

105. Mr Dedes was in a position of authority to rectify safety risks present on site.

106. On one occasion prior to the incident, while at the site, Mr Perry observed that an energised crane rail of 200,000 volts was approximately one metre away from where workers would be situated on the roof while undertaking the works. Mr Perry informed Mr Dedes of his concern and said that an electrician should be called to de-energise the crane rail. Mr Dedes agreed.

107. As Riverwall was the principal contractor, Mr Dedes organised for an electrician to remove the risk of electrocution relating to the crane rail before work commenced.

108. Mr Dedes was at the site on 7, 9 and 10 February 2019 and submitted progress photos to another Riverwall employee. The power lines were clearly visible in the background of those photographs. However, Mr Dedes stated that he did not observe the power lines running parallel to the rear of the building at the site.

Perry’s Roofing

109. Mr Perry’s qualifications included metal roofing, slate roofing, tile roofing, a handrails ticket and a scaffolding ticket.

110. Perry’s Roofing was responsible for replacing the roof. It carried out safety inspections at the site and prepared the SWMS for the roof replacement.

111. On every job Mr Perry got on the roof to check for safety hazards.

112. Perry’s Roofing owned the edge protection and was responsible for its installation around the perimeter of the roof.

113. Perry’s Roofing arranged for a scissor lift and for a crane to be used on site and provided the new roofing material for the building.

114. Perry’s Roofing engaged Prime Metal to the do the majority of the roofing work and Mr Perry, on behalf of Perry’s Roofing, had responsibility for Perry’s Roofing and HiVis Boys workers. This required him to identify site-specific hazards and risks and provide supervision.

115. On 2 February 2019, prior to the works commencing, Mr Perry attended an initial meeting at the site with Mr Dedes, Mr Holloway, Mr Marmont and Mr McAskill to discuss how the work was to be safely performed. Mr Dedes conducted this meeting.

116. On behalf of Perry’s Roofing, Mr Perry prepared the SWMS for “Asbestos re- roofing” dated 4 February 2019, which was submitted to Riverwall on 7 February 2019.

117. The SWMS did not include the erection or removal of the edge protection from the perimeter of the roof, nor did it identify the risk of working near power lines.

118. The SWMS was signed by Mr White and Mr Higham. Prime Metal workers wore Perry’s Roofing t-shirts and were required to sign Perry’s Roofing’s SWMS.

119. Mr Perry first observed the power lines at the rear of the building on the first occasion that he accessed the roof of the building on 8 February 2019. He formed the view that the power lines were several metres away from the roof and did not consider the proximity of the power lines to the edge of the roof to be a hazard.

120. Mr Perry accessed the roof again on the mornings of 9 February and 11 February 2019 to observe the progress of the job and whether it was being completed correctly and safely, and to observe if there had been any new or deteriorating hazards. Mr Perry did not consider that there were any hazards on these occasions.

Prime Metal

121. A text message with an outline of the job details was how Perry’s Roofing engaged Prime Metal. On bigger jobs, Prime Metal would subcontract additional workers to assist Mr Holloway and Mr Marmont in completing the work.

122. Prime Metal did not submit a quote for the job, nor did it order materials or supply any personal protection equipment.

123. All work at the site was done at the direction of Perry’s Roofing and it was Perry’s Roofing who informed Prime Metal what work was to be done.

124. Prime Metal did not have any safety system in place in relation to working near the power lines. For the work at the site, Prime Metal relied on Perry’s Roofing’s SWMS and its own visual assessment of the site.

125. Prior to starting the job, Mr Holloway and Mr Marmont attended the site with Mr Perry who said what he wanted done and how to complete it. Neither Mr Holloway nor Mr Marmont identified the power lines at the rear of the building to be a risk because the power lines were not on the site and doing the work did not involve the power lines.

126. On 8 February 2019, the first day of the job, both Mr Holloway and Mr Marmont saw the power lines for the first time at the rear of the site but did not consider them to be a risk. Mr Holloway and Mr Marmont had been informed that workers had concerns about the power lines.

127. On 9 or 10 February 2019 Mr Irving informed Mr Holloway that he had expressed his concerns to Mr Dedes about the proximity of the power lines and that Mr Dedes had responded: “Don’t worry about it, it’s all good”.

128. On 10 February 2019 Mr Holloway noticed the power lines when he was on the roof but considered that they were low and “below the building”. He told SafeWork NSW investigators that he was not educated about power lines and had no idea about their risk.

129. Prime Metal had between 7 and 19 contractors working at the site over the course of the project. On the day of the incident, all seven workers at the site were engaged by Prime Metal.

130. Mr White had started with Prime Metal on 17 December 2018 as a labourer. Prime Metal understood that Mr White had previous experience with another roofing company. Mr White was not directly employed by Prime Metal but the arrangement was that Prime Metal would pay Mr White upon receipt of invoice from Mr White. Mr White was told to do general labour tasks and he was supervised by Prime Metal. Mr White carried out work at the site from Friday, 9 February to Monday, 11 February 2019.

131. Mr Higham had been carrying out work for Prime Metal for two days prior to the incident. Mr Higham was not directly employed by Prime Metal but the arrangement was that Prime Metal would pay Mr Higham upon receipt of an invoice from Mr Higham. Mr Higham was a carpenter by trade and had completed training in general construction and working at heights. He had previous experience in working on roofs and repairing metal roofing.

Relevant Guidance Material

132. Clause 166(1) of the Regulation provides that a PCBU at a workplace must ensure, so far as is reasonably practicable, that no person plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line.

133. Clause 166(2) of the Regulation provides that if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from any overhead or underground electric line, the PCBU at the workplace must ensure that:

1. A risk assessment is conducted in relation to the proposed work.

2. Control measures implemented are consistent with:

1. The risk assessment.

2. If an electricity supply authority is responsible for the electric line, any requirements of the authority.

134. Clause 299(1) of the Regulation provides that a PCBU that carries out high risk construction work must, before such work commences, ensure that a SWMS for the proposed work is prepared or has already been prepared by another person.

135. Clause 291(k) of the Regulation provides that “high risk construction work” includes “work that is carried out on or near energised electrical installations”.

136. The WorkCover NSW Code of Practice Work Near Overhead Power Lines dated July 2006 required a safe approach distance of three metres to be maintained from overhead power lines up to and including 132,000 volts. This Code of Practice was freely available on the SafeWork NSW website prior to the incident and provides practical guidance on risk management principles.

137. The WorkCover NSW Code of Practice Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 stipulates that a four-metre distance should be maintained from power lines where metal is used. This Code of Practice was also freely available on the SafeWork NSW website prior to the incident.

138. Australian/New Zealand Standard AS/NZS 4994.2-2009 Temporary Edge Protection, Part 2: Roof Edge Protection – Installation and Dismantling (the Standard) required consideration of the proximity to power lines during planning of the work and during the development of the SWMS. The Standard also says that employers must ensure that workers possess sufficient knowledge and be given adequate training. The Standard points out that a person does not need to have direct contact with power lines to receive a fatal shock.

139. The WorkCover NSW Code of Practice Construction Work dated July 2014 provided general WHS guidance on what is required in SWMSs.

140. The Safe Work Australia General Guide for Working in the Vicinity of Overhead and Underground Electric Lines dated 2014 cautions at p 2 that a close approach to energised conductors may allow a flashover or arc, a risk which increases as the line voltage increases.

141. The Australia Scaffolds User Manual for Roof Edge Protection says at par 7.5 that where edge protection is in close proximity to power lines, the handling of steel rods and other long metal items should be carried out in a manner that preserves the safe minimum distance of four meters.

Systems of Work Following the Incident

142. SafeWork NSW issued a Prohibition Notice 46514 to Riverwall to ensure that no plant or thing comes within four metres of high voltage power lines at the workplace. Riverwall complied with the notice by ensuring, inter alia, that no one went on the roof until the power lines were de-energised, Perry’s Roofing updated their SWMS to include the risk of electrocution from power lines and confirming to Perry’s Roofing that Endeavour Energy had isolated the power lines.

143. Perry’s Roofing updated its SWMS to deal with the risk of electrocution from power lines. Perry’s Roofing also engaged an external safety expert to inspect the site, address any safety issues and to update the SWMS.

Evidence for the Defendant

Affidavit of Mr Kieran Joseph Holloway

144. Mr Kieran Holloway swore an affidavit on 22 November 2022 (DX 1). He is a director of Prime Metal. He is 28 years old.

145. Mr Holloway began his affidavit by conveying his sincere remorse and deep regret for the incident and the actions he should have taken but did not.

146. From the age of 14 Mr Holloway pursued a career playing professional rugby league. The Canterbury Bulldogs arranged employment for Mr Holloway to work as a garbage collector for URM in addition to playing rugby league. His high school friend Mr Michael Marmont already worked for URM and the two developed a strong bond. Mr Holloway met and became friends with Mr Joel White through Mr Marmont.

147. A shoulder injury put an end to Mr Holloway’s league career and his job at URM. Mr Holloway felt lost and not ready to give up league, so he decided to coach a local under 14s rugby league team at the Menai Colts club.

148. During his time at the Menai Colts club, Mr Holloway was offered a job as a roofer from his boss. He accepted this offer and worked for him for the next six years. With his help, Mr Holloway completed an apprenticeship in roof plumbing.

149. Mr Holloway told his boss that Mr Marmont was interested in getting a start in the roofing trade. Mr Marmont then began working with him.

150. After a few years Mr Marmont commenced working at Perry’s Roofing.

144. Mr Holloway met Mr Perry through Mr Marmont. The style of roofing and type of work that Mr Perry did was very different to that which Mr Holloway did with his company. This led him to learn more about other aspects of his trade.

145. At 21 years of age Mr Holloway was expecting his first daughter with his wife. He started to feel significant financial pressures and needed money to pay medical expenses. He began to work weekends and Christmas holidays with Perry’s Roofing, which operated 7 days a week.

146. In 2018 Mr Marmont told Mr Holloway that Mr Perry needed subcontractors to help with his increased workload arising from the hailstorms that had occurred in Sydney that year. Mr Holloway’s work friends were all burnt out from working 7-day weeks on a subpar wage and missing out on quality time with family and friends. It made sense to Mr Holloway to take this opportunity to start a business, now feeling ready after having spent several years in the roofing trade.

147. Mr White had roofing experience in the past and was one of the first people to get behind the business.

148. Mr Holloway discussed Mr White and his friendship with him in his affidavit. He said it was difficult for him to recount the traumatic events and described the pain and heartache he has experienced since the incident. He lost more than an employee but a friend and wished Mr White’s family did not have to go through what they were dealing with daily.

149. Mr Holloway stated that no matter the outcome on sentence, he will live with the regret and remorse for trusting the builder, acting on the advice and instructions of the building company and Perry’s Roofing and allowing Prime Metal workers to work prior to Riverwall rectifying the issue.

150. Mr Holloway acknowledged that more was required of him despite his young age and lack of experience. He stated that he regrettably acted on the advice of Mr Perry and Mr Dedes instead of going with his gut instinct that the power lines were a real danger and a safety hazard. He said he was young, naïve and thought their advice would have taken everyone’s best interests into account, especially in relation to safety and wellbeing.

151. On the day of the incident seven workers from Prime Metal were working. Five of Prime Metal’s employees, including Mr White, were on the roof. Mr Holloway and another employee were within four metres of Mr White.

152. Mr Perry and Mr Dedes, both of whom Mr Holloway trusted with the safety and procedure of the job, were not present on the roof.

153. Mr Holloway stated that he made a costly mistake and accepts responsibility for his actions.

154. The fire and rescue crew told Mr Holloway that if Mr White had fallen forward instead of the way he fell, all five workers on the roof would have died.

155. When the incident occurred Mr Holloway stood frozen and tried to get closer to Mr White to help him. He could feel an electric shock running through his legs and the soles of his shoes had melted by the time he made it to the concrete wall. Mr White was laying 20 metres away from him. Mr Holloway sat on the wall crying in disbelief for two hours until they got him off the roof.

156. Mr Holloway blamed himself and stated that if he knew what he did now, he would have disregarded Mr Dedes’ instructions and ceased working at the site. He has learned that no matter how much more experienced someone else is, if something doesn’t sit well with him than he should remove himself from the situation.

157. For many nights Mr Holloway spent time with Mr White’s family and friends to grieve.

158. About two weeks after the incident, following Mr White’s funeral and a funeral for Mr Marmont’s father, Mr Holloway and Mr Marmont informed their team that they were closing the business and considering not returning to roofing. However, Mr White’s parents told them to continue their work because that is what Mr White would have wanted.

159. Mr Holloway did not think it was the right decision for him but decided to remain in the roofing trade. It was all he knew, and he didn’t feel comfortable with a fresh start in another trade because he needed to make an income to look after his family.

160. Mr Holloway asked Mr Perry if he had a job for Prime Metal. However, Mr Holloway explained that he and Mr Marmont did not want to manage the job.

161. Prime Metal commenced working under Mr Perry’s employee, Mr Billy McAskill, using Perry’s Roofing SWMS and in Perry’s Roofing’s uniform, as was the case with all their other jobs.

162. Mr Holloway considered himself labour hire even when operating a business of his own. Things had not changed much when he and Mr Marmont started up the business in terms of how work was done.

163. This method of operation led to another avoidable workplace incident involving Prime Metal when a roof collapsed at a separate job in Moorebank.

164. This accident occurred a day after Mr Holloway had a counsellor come and speak to the Prime Metal crew to offer help from the incident.

165. Mr Holloway described the depression and stress he experienced. Amidst this his second daughter was born and he was again feeling financial pressures, exacerbated by the fact he now had one more child and had to pay a lawyer for both incidents.

166. Mr Holloway stated that he again acted on the advice and instruction of Perry’s Roofing and the foreman who he trusted for a second time. He considered they had everything under control for the job to run safely, especially following the workplace incident that had occurred only weeks earlier.

167. Mr Holloway stated he has learned so much from both incidents. He acknowledged where he went wrong as a person and as a boss to Prime Metal’s workers.

168. He has spent three anniversaries and birthdays of Mr White at the cemetery with his friends and family.

169. He has gone back to work earning a basic pay, is still paying off legal fees, and is living payday to payday to provide for his family.

170. Mr Holloway apologised to all of those who had been impacted by the incident. Although much of his affidavit has discussed Mr White, his remorse extends equally Mr Higham.

171. He further apologised that he had the power to stop this from happening but did not act upon it.

Affidavit of Mr Michael Gregory Marmont

179. Mr Michael Marmont swore an affidavit on 6 December 2022 (DX 2). He is a director of Prime Metal. He is 29 years old.

180. Mr Marmont began his affidavit by stating his sincere regret and remorse for the tragic events that took place on 11 February 2019.

181. Mr Marmont was introduced to construction work by his dad who he worked alongside while still at school and then full-time once he completed his Year 12 Certificate. They worked on big projects, including the construction of the M7 Motorway and the upgrade of the Kingsgrove to Revesby rail lines.

182. When he was 18 years old, Mr Marmont wanted a new challenge and took up an opportunity with a childhood friend to do a job in roofing. He quickly loved the work and met many liked-minded people who also enjoyed construction.

183. Mr Marmont started as a labourer and worked tirelessly over the years to learn the metal roofing trade, which became his passion and livelihood.

184. Mr Marmont started working at a company called Ace Roofing with his friend, Mr Kieran Holloway.

185. After seven years Mr Marmont commenced working with Perry’s Roofing under the owner, Mr Perry.

186. After a further three years Mr Marmont noticed many other roofing companies subcontract roofing work through Mr Perry’s business. This led Mr Marmont to take the opportunity to do the same after 10 years of working in the trade. Ultimately, he and Mr Holloway made the decision to become business owners and subcontract to Perry’s Roofing, with the ambition of one day owning a successful roofing business.

187. Mr Marmont provided details of his friendship with Mr White, which began when they were young teenagers. He and Mr White were inseparable. They worked, travelled and spent much of their free time together.

188. Mr White was supportive of their decision and began working for Prime Metal. It was not Mr White’s first time doing roofing work. Mr Marmont said that Mr White was a hardworking and reliable worker who was always willing to learn.

189. On the morning of 11 February 2019, Mr Marmont was in Melbourne boarding a plane headed back to Sydney.

190. He received a phone call from Mr Holloway. Mr Holloway told Mr Marmont that Mr White had been in an accident and was gone. He asked for Mr White’s mother’s phone number, which Mr Marmont obtained from a close friend.

191. Mr Marmont could not believe that his friend had died and recalled being physically sick in the plane’s lavatory.

192. When Mr Marmont landed back in Sydney, he immediately attended the site of the incident. However, the roads were closed, and media crews were flooding the streets. His friends and colleagues as well as Mr White’s family were waiting, distraught outside the factory. He could not get in and tried to comfort Mr White’s twin sister.

193. At that stage Mr White’s family did not know that he had been involved in a fatal accident and were yelling out to him in the hope that he would be okay. After about half an hour the police confirmed to Mr White’s parents their worst fears.

194. Mr Marmont described the mourning on the night of the incident and in the days that followed. He spent many days with Mr White’s family at his house sharing memories of Mr White. On the Saturday following the incident a barbeque was held for Mr White’s family and friends to remember him.

195. Mr Marmont was asked to be a pallbearer at Mr White’s funeral, which he was honoured to do.

196. Mr Marmont continues to visit Mr White and his family at Christmas, birthdays, and other anniversaries.

197. Mr Marmont took an extended break from roofing. He decided to continue roofing following a conversation with Mr White’s father who assured him it was what Mr White would have wanted. However, he has not returned to managing jobs and no longer wanted the responsibility of overseeing anyone else.

198. He has since returned to his first boss at Ace Roofing for the past few years.

199. Mr Marmont apologised to Mr White’s family and all of his extended family. He stated that he will always feel guilty that Mr White had worked for him and described the ways that Mr White was one of a kind. He also thanked the family for their support over the years.

200. He apologised to Mr Higham for what he went through and the severe burns he suffered, which he does not wish upon anyone, as well as to Mr Derick McKenzie, Mr Warren Irving and Mr Daniel Te Riini who lost a friend and colleague.

201. Mr Marmont also expressed his remorse to the Court, SafeWork NSW and the emergency services for having to deal with the details and trauma of the incident.

202. Mr Marmont stated that it has also been tough financially. Prime Metal never blossomed. He and Mr Holloway lost not only the business but also their savings.

203. The incident had made him aware of safety around job sites. Minor safety hazards now stand out to him as life threatening hazards.

Consideration

204. 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

205. 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].

206. 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].

207. 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.”

208. 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].

209. 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.

210. 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.

211. 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.”

212. 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.”

213. 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.”

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

1. The risk of the power lines was known to Prime Metal. Mr Holloway and Mr Marmont were both informed that their own workers had concerns about the power lines.

2. In any event the risk was foreseeable and should have been known to Prime Metal by reason of guidance material.

3. There was a significant likelihood of the risk occurring. Young and relatively inexperienced workers were put at risk on the roof.

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

5. Simple steps to eliminate or minimise the risk, as set out in the Amended Summons, were available.

6. There was no cost or inconvenience in the steps to be implemented, which really involved Prime Metal checking and insisting that Riverwall and Perry’s Roofing had a proper safety system in place.

7. The death of Mr White and the serious burns suffered by Mr Higham were caused by the breach of duty by Prime Metal.

8. 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.

9. The Act specifically states that work health and safety duties cannot be delegated. A PCBU cannot, in effect, shrug its shoulders and say “someone else will look after safety”.

10. The failures by Prime Metal are largely explained, but not excused, by the commercial inexperience and lack of business sophistication of Mr Holloway and Mr Marmont.

215. I find that the level of culpability of Prime Metal is in the upper half of the mid range.

Deterrence

216. 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].

217. The penalty must consider the need for specific deterrence. Prime Metal is no longer conducting a business. In these circumstances specific deterrence is not a factor.

Aggravating Factors

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

Mitigating Factors

219. Prime Metal has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. However it had only been in business for two months when this incident occurred.

220. Prime Metal 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 death of Mr White and the injury to Mr Higham were caused by its actions.

221. Prime Metal 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 Prime Metal a 25% discount for an early plea.

Parity

222. Perry’s Roofing and Riverwall were also prosecuted for breach of their health and safety duties arising under the Act, relating to the same incident.

223. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

224. The principle operates in the nature of a “check” required of the sentencing court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

225. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

226. It is appropriate for the court to consider the respective contributions of those co-offenders and Prime Metal. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

227. I find that Prime Metal was less culpable than both Perry’s Roofing and Riverwall. In relation to Perry’s Roofing, I set out the reasons for coming to the view that the objective seriousness of the offence in that case fell into the high range in SafeWork NSW v Perry’s Roofing Pty Ltd [2022] NSWDC 261 at [151]. I also assessed the objective seriousness in relation to Riverwall as being in the high range in SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408 at [178].

228. Both Perry’s Roofing and Riverwall were larger, more experienced and more sophisticated organisations than Prime Metal. Both Perry’s Roofing and Riverwall were providing their own safety systems, which Prime Metal naively assumed would have been adequate. By contrast, Prime Metal was essentially providing labour to work under the aegis of Perry’s Roofing and Riverwall.

Capacity to Pay a Fine

229. 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.

230. 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.”

231. The court was informed that Prime Metal is no longer trading. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

232. The defendant was convicted at the sentence hearing on 16 December 2022.

233. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 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).

234. 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).

235. 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).

236. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

237. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

238. The court received a joint Victim Impact Statement (PX 4) of:

1. Mr David White, father of Mr Joel White.

2. Mrs Rosalia White, mother of Mr Joel White.

3. Ms Erin Marturano, sister of Mr Joel White.

4. Ms Cayla Kabourakis, twin sister of Mr Joel White.

5. Ms Demi Kovacs, partner of Mr Joel White.

239. The joint statement was signed by each family victim and read aloud to the court by Mr David White in the presence of Mr Holloway and Mr Marmont.

240. Mr David White recounted the trauma and grief that the family had suffered and continued to suffer. This was an ordeal Mr White’s family had gone through multiple times with respect to the co-offenders. Hopefully the conclusion of this case will provide some relief from this aspect of their mourning.

241. The family victims acknowledged that Mr Holloway and Mr Marmont had a level of responsibility but did not blame Mr Holloway and Mr Marmont for the events that relate to the loss of Mr White. They expressed their gratitude that Mr Holloway and Mr Marmont came to their home to pay their respects, admitted to their level of responsibility and apologised for their role in the incident.

242. They emphasised that a monetary fine in no way fits the gravity of the outcome in this situation and advocated for reform to ensure that organisations do not take shortcuts and ignore safety protocols.

Costs

243. The prosecutor is entitled to an order that the defendant is to pay the prosecutor’s costs.

Penalty

244. My orders are:

1. Prime Metal Roofing Pty Ltd was convicted on 16 December 2022.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Prime Metal Roofing Pty Ltd to pay a fine of $375,000.

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 Prime Metal Roofing Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 08 February 2023