SafeWork NSW v Riverwall Constructions Pty Ltd

[2022] NSWDC 408

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

30 August 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Riverwall Constructions Pty Ltd was convicted on 30 August 2022.

(2)   The appropriate fine is $800,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Riverwall Constructions Pty Ltd to pay a fine of $600,000.

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

(5)   Order Riverwall Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $41,300.11.

(6) Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):

a. Within six months of the date of these Orders, the defendant is to fund (to a limit of $20,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses:

i. the incident in which Mr Joel White and Mr Higham (the workers) were exposed to a risk of death or serious injury on 11 February 2019 (the material date);

ii. the risk to which the workers were exposed on the material date;

iii. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which the workers were exposed on the material date as far as is reasonably practicable;

iv. other guidance material applicable to safe work on roofs and near power lines as deemed appropriate by SafeWork NSW;

b. The management of the project and the provider will be undertaken by SafeWork NSW;

c. The content of the project and the provider of the project are to be approved by SafeWork NSW;

d. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

e. The video is to bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales;

f. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

g. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

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 – defendant conducted a business or undertaking involving building and construction work – workers engaged in dismantling edge protection while standing on roof – worker suffered fatal injuries after he was electrocuted – contact between energised power lines and steel hand rail worker was holding – second worker suffered severe flash burns to legs – failure to ensure contractor conducted a site-specific risk assessment – failure to arrange for power lines to be de-energised prior to task being undertaken – failure to verify that contractor’s Safe Work Method Statement identified hazards and risks associated with power lines and outlined associated control measures

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 17, 19, 32, 238, 244

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

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:

Australia Scaffolds User Manual for Roof Edge Protection

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, Safe Work on Roofs, Part 1: Commercial and Industrial Buildings, 2009

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

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Riverwall Constructions Pty Ltd (Defendant)

Representation:

Counsel:
P Gow (Prosecutor)
M Shume (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Clyde & Co (Defendant)

File Number(s):

2021/33216

Judgment

1. On 11 February 2019 at 32 Regent Crescent, Moorebank (the site) Mr Joel White, a 25-year-old labourer engaged by Prime Metal Roofing Pty Limited (Prime Metal), was dismantling edge protection while standing on the roof. He suffered fatal injuries after he was electrocuted, following contact between high voltage energised power lines and a steel handrail that he was holding. Mr Morris Higham, another labourer engaged by Prime Metal, attempted to assist Mr White and suffered very severe flash burns to his legs.

2. Riverwall Constructions Pty Ltd (Riverwall Constructions) 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.

The Risk

4. The risk described in par 12 of the Amended Summons (PX 1, Tab 1) is as follows:

“12. 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

5. Paragraph 13 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:

“13. 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. Require Perry’s Roofing to conduct 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 from the site;

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 which the installed edge protection would be from the power lines.

b. Arrange for the power lines to be de-energised prior to the task being undertaken;

c. Verify that the Safe Work Method Statement provided by Perry’s Roofing identified the hazards and risks associated with the power lines at the site and control measures to address the hazards and risks, such as:

i. Requiring power lines to be de-energised while the edge protection was installed and dismantled;

ii. Requiring power lines to remain de-energised whilst the edge protection remained in place and/or the installation of a physical barrier constructed of non-conductive material.”

Background

6. The parties presented an Agreed Statement of Facts (PX 1, Tab 2) and this material is summarised below.

Relevant Parties

7. Riverwall Constructions conducted a business or undertaking which performed building repair and reinstatement work for major insurance companies. Riverwall Constructions employed 38 workers. Riverwall Constructions was engaged by Procare Loss Adjusting Pty Ltd (Procare), the loss adjustors of an insurer, to replace three roofs due to hail damage at the site.

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

9. Riverwall Constructions engaged Perry’s Roofing Pty Ltd (Perry’s Roofing) to replace a hail-damaged asbestos roof at the site. Perry’s Roofing conducted a business or undertaking involving residential and commercial roofing work. Perry’s Roofing employed eight workers. Mr Grant Perry was the sole director of Perry’s Roofing.

10. HiVis Boys Pty Ltd (HiVis Boys) was a labour hire company that supplied workers and sub-contractors to various roofing companies. HiVis Boys 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.

11. Perry’s Roofing engaged Prime Metal to supply labour to perform the roofing work. Prime Metal provided labour to metal roofing companies to carry out metal roofing work. Mr Kieren Joseph Holloway and Mr Michael Gregory Marmont were directors of Prime Metal. Mr Holloway was a qualified roof plumber with about seven years experience. Mr Marmont was not a qualified roof plumber but had done roofing work for about four years at the time of the incident.

Personnel at the Site

12. Mr Chris Dedes was a construction manager for Riverwall Constructions.

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

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

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

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

Engagement of Works

17. Procare sought three quotes to replace the damaged roof. Riverwall Constructions tendered and was eventually appointed by the insurer to replace three roofs at the site. Its tender, which was limited to the re-instatement of the hail-damaged roof and associated works, recorded that Riverwall Constructions would oversee the project and supervise it, although supervision was not to be provided on a full-time basis. The tender stated that Riverwall Constructions had not allowed for a full-time site manager/foreman.

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

19. On 21 December 2018 Mr Dedes attended the site and conducted a visual inspection of the internal damage to the roof. Mr Dedes did not access the roof at any stage. He was not licensed or qualified to do so.

20. On 21 December 2018 Riverwall Constructions requested Perry’s Roofing to attend the site to evaluate the external damage and provide a quote to repair or replace the roof.

21. Perry’s Roofing submitted a quote to Riverwall Constructions dated 21 December 2018 for $212,965.50 to replace the hail-damaged asbestos roof (PX 1, Tab 8).

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

23. Riverwall Constructions submitted a tender 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.

24. The quote already obtained from Perry’s Roofing was incorporated into the Riverwall Constructions tender.

25. Procare subsequently requested Riverwall Constructions to provide a roof report. Riverwall Constructions engaged Perry’s Roofing to attend the site for this purpose as Perry’s Roofing had qualified and licensed employees who were capable of accessing the roof for such inspection.

26. On 15 January 2019 Perry’s Roofing accessed the roof and provided Riverwall Constructions with a roof report which was then provided to Procare. The report detailed the condition of the roof and contained photographs taken while standing on the roof. The report made no mention of power lines.

27. Mr Dedes prepared the Riverwall Constructions Approved Scope of Works document dated 21 January 2019 which confirmed that Riverwall Constructions was authorised to complete the works contained in the document (the works). Procare approved the works on the basis that Riverwall Constructions would not be providing full-time supervision.

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

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

30. Perry’s Roofing then engaged Prime Metal to supply labour to remove and replace the roof at the site. This engagement was done via a text message sent from Mr Perry to Mr Holloway on 5 February 2019.

31. Prime Metal was told by Mr Perry to invoice HiVis Boys for the work done at the site.

The Site

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

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

34. 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.

35. The pole closest to where the incident occurred measured 9.4 metres from the ground to the crossarm underside. The pole at the other end of the building measured 9.1 metres from the ground to the crossarm underside.

36. 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, the visibility of the power lines from the roof depended on where a person was located on the roof. Mr Holloway did not notice the rear power lines when he first accessed the roof.

Work at the Site

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

38. On 7 February 2019, work commenced at the site. This work involved the removal of the gutters on the warehouse.

39. On 8 February 2019 edge protection was installed 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 building (along the edge closest to the power lines). The edge protection was owned by Perry’s Roofing.

40. Mr McAskill installed the edge protection on the roof using a scissor lift. A plate was connected to the fascia, then a “T” bracket connected to the plate which 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 (that Mr White was holding when electrocuted) was a 6.47m long x 25mm steel box section tube (the handrail).

41. Mr McAskill used a boom lift 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. Two apprentices assisted Mr McAskill in installing the edge protection. While installing the edge protection Mr McAskill had seen that there were power lines at the rear of the warehouse. However, Mr McAskill thought that the power lines were a safe distance away.

42. It was planned for Mr McAskill to return to the site to remove the edge protection. However, he was sent to another job and had to remain at a different location.

43. Mr McAskill stated that it was not normally his job to remove the edge protection. It depended on who was available at the time the job was finished.

The Incident

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

45. On Saturday, 9 February 2019, there were 20 workers installing steel barge capping and replacing asbestos roof sheeting with new roof sheets.

46. On Sunday, 10 February 2019, work continued on the roof of the warehouse.

47. On Monday, 11 February 2019, there were seven workers engaged by Prime Metal performing work on the roof.

48. 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.

49. There is no evidence that Mr Perry, Mr McAskill or anyone from Perry’s Roofing were informed that it was proposed that Prime Metal workers were going to commence the task of removing the components of the edge protection. The workers had not been instructed at that point to dismantle the edge protection.

50. Mr Higham and Mr White then commenced to remove the metal handrails of the edge protection on the warehouse roof.

51. Mr Higham and Mr White were standing on the roof. 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”.

52. Mr White said, “It’ll be ok” and Mr Higham replied, “Whatever”. Mr Higham then began to slide the bottom rail out away from the power lines.

53. 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. Mr Higham saw that it was very close to the power lines. Mr Higham then saw a white light appear 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 connected.

54. 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 on his stomach and the other end contacting the power line.

44. 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.

45. Mr Higham and the other workers then jumped onto the lower roof and sat on the brick wall of the building and waited for emergency services to arrive.

46. A later examination showed burns on the handrail and also on Mr White’s body as 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.

47. Fire and Rescue NSW contacted Endeavour Energy who attended the site and isolated the power lines.

48. Mr Higham suffered serious partial thickness 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 Constructions

60. The Scope of Works was prepared by Silver Wolf Projects Pty Ltd (Silver Wolf). The Scope of Works indicated in the general 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 Constructions received the Scope of Works on 7 February 2019.

61. At the time of the incident Riverwall Constructions had in place a Project Plan that included site-specific work health and safety information for the site. The Riverwall Constructions WHS Manual required that a subcontractor’s SWMS be site-specific. The Project Plan stated that: Riverwall Constructions was responsible for risks related to its work and that subcontractors must provide Riverwall Constructions with a copy of their SWMS for high risk construction work activities. It also stated that contractors working on the site were responsible for conducting risk assessments and preparing a SWMS for high risk construction tasks for which they are responsible.

62. The Project Plan specified that the Construction Manager for Riverwall Constructions (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”.

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

64. Endeavour Energy did not receive a request to isolate the power to the power lines at the rear of the warehouse before the incident occurred on 11 February 2019.

65. Mr Dedes requested Perry’s Roofing to complete a site-specific SWMS for the re-roofing of the building.

66. On 7 February 2019, Mr Dedes obtained the SWMS from Perry’s Roofing titled “Asbestos re-roofing” (PX 1, Tab 10) and conducted a “high level” review of the SWMS to check that it had been signed by the relevant workers and that it was site-specific.

67. 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.

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

69. The Riverwall Constructions Work Site Checklist (PX 1, Tab 11), against which the SWMS was checked, was completed by Mr Dedes on 9 February 2019 but it did not mention power lines at all.

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

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

72. Mr Dedes visited the site on 32 occasions between 21 December 2018 and the date of the incident. Mr Dedes stated that he did not see the power lines in close proximity to the roof at the rear of the building.

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

74. Toolbox talks were conducted by Mr Dedes. However, Mr Dedes did not raise at those toolbox talks the risk associated with electricity or the existence of the power lines.

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

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

77. On those occasions Riverwall Constructions 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

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

79. Mr Dedes had over 30 years of 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.

80. Mr Dedes’ role as 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 Scope of Works.

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

82. 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 this inspection, Mr Dedes identified the need to engage specialist contractors to monitor the asbestos levels and remove the asbestos from inside the warehouse. Mr Dedes also requested Perry’s Roofing to attend the site to do an evaluation of the roof.

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

84. 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.

85. 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, the following was said:

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”.

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

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

88. Mr Dedes stated that he does not recall any workers on site raising concerns with him in relation to the rear power lines.

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

90. On one occasion prior to the incident, Mr Perry observed that an energised crane rail of 200,000 volts was about a 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. Mr Dedes organised for an electrician to remove the risk of electrocution relating to the crane rail before work commenced.

91. On or around 5 February 2019, during a walk-through of the site, Mr Dedes identified an issue with an electrical cable inside the warehouse and organised for an electrician to rectify the issue and to isolate the power.

92. Mr Dedes was at the site on 7, 9 and 10 February 2019 and submitted progress photos to another Riverwall Constructions employee. The power lines were 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

93. Mr Perry’s qualifications included metal roofing, slate roofing, tile roofing, a handrails ticket and a scaffolding ticket. Perry’s Roofing employed six workers.

94. Perry’s Roofing was responsible for replacing the roof and identifying the hazards and risks involved in the work to be performed on the roof. It carried out safety inspections at the site and prepared the SWMS for the roof replacement.

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

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

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

98. Perry’s Roofing engaged Prime Metal to 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.

99. 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.

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

101. 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.

102. The SWMS was signed by Mr White and Mr Higham.

103. 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. Mr Perry formed the view that the power lines were several metres away from the roof and he did not consider the proximity of the power lines to the edge of the roof to be a hazard.

104. Mr Perry accessed the roof again on the mornings of 9 February and 11 February 2019 to observe the progress of the job, whether it was being completed correctly and safely, and whether there were any new or deteriorating hazards. Mr Perry did not consider that there were any hazards on these occasions. Mr Perry never raised the issue of the power lines with Riverwall Constructions or Mr Dedes.

Prime Metal

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

106. Prime Metal only supplied labour for Perry’s Roofing. On some occasions the job would be small enough for Mr Holloway and Mr Marmont to complete. On bigger jobs, Prime Metal would subcontract additional workers to assist in completing the work.

107. 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.

108. 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 the Perry’s Roofing SWMS and its own visual assessment of the site.

109. 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 as the power lines were not on the site and doing the work did not involve the power lines.

110. On Friday, 8 February 2019, both Mr Holloway and Mr Marmont saw the power lines 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. Neither Mr Holloway nor Mr Marmont informed Riverwall Constructions or Mr Dedes of these concerns.

111. On Sunday, 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”.

112. 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.

113. Mr White commenced working 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 an invoice from Mr White. Mr White was told to do general labouring tasks. He was supervised by Prime Metal. Mr White carried out work at the site from Friday, 8 February 2019 to Monday, 11 February 2019.

114. 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

115. Clause 166(1) of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) provides that a person conducting a business or undertaking (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.

116. 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; and

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

117. 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.

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

119. The WorkCover NSW Code of Practice, Work Near Overhead Power Lines dated July 2006 (PX 1, Tab 12) 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 provided practical guidance on risk management principles.

120. The WorkCover NSW Code of Practice, Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 (PX 1, Tab 13) stipulated 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.

121. Australian/New Zealand Standard AS/NZS 4994.2-2009 Temporary Edge Protection, Part 2: Roof Edge Protection – Installation and Dismantling (the Standard) (PX 1, Tab 14) required consideration of the proximity to power lines during planning of the work and during the development of the SWMS. The Standard also said that employers must ensure that workers possess sufficient knowledge and be given adequate training. The Standard pointed out that a person does not need to have direct contact with power lines to receive a fatal shock.

122. The WorkCover NSW Code of Practice, Construction Work dated July 2014 (PX 1, Tab 15) provided general WHS guidance on what is required in SWMSs.

123. The Safe Work Australia General Guide for Working in the Vicinity of Overhead and Underground Electric Lines dated 2014 (PX 1, Tab 16) cautioned 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.

124. The Australia Scaffolds User Manual for Roof Edge Protection (PX 1, Tab 17) said 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 metres.

Systems of Work Following the Incident

Riverwall Constructions

125. SafeWork NSW issued a Prohibition Notice 46514 to Riverwall Constructions to ensure that no plant or thing comes within four metres of high voltage power lines at the workplace. Riverwall Constructions complied with the notice by:

1. Contacting Endeavour Energy to arrange for the power lines to be de-energised.

2. Ensuring that no one went onto the roof until the power lines were de-energised.

3. Ensuring that Perry’s Roofing updated their SWMS to include the risk of electrocution from power lines.

4. Confirming to Perry’s Roofing that Endeavour Energy had isolated the power lines.

126. Riverwall Constructions sought clarification from Endeavour Energy on how to identify the distance between the power lines and the roof of a building because no such information was publicly available from Endeavour Energy at the time of the incident. Riverwall Constructions further sought advice on this from SafeWork NSW and NSW Police.

127. Riverwall Constructions introduced a requirement on all of its projects that if during a site inspection it cannot visually inspect a particular area of the work site, a specialist contractor must be engaged to inspect the area, take photographs and provide a report demonstrating whether or not the area is safe for work.

128. Riverwall Constructions employed a full-time WHS officer on 17 June 2019 to support its health and safety management system improvement initiatives. This was a recruitment matter that had already been identified prior to the incident. The WHS officer reports to Mr Andrew Mamasioulas.

129. With the improvement project complete, under the current Riverwall Constructions organisational structure, the position of HR/WHS Advisor has been created to maintain that system and support the business with full-time HR and WHS advisory services.

Perry’s Roofing

130. 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 update the SWMS.

Evidence for the Defendant

131. Mr Andrew Mamasioulas swore an affidavit dated 11 August 2022 (DX 1). Mr Andrew Mamasioulas is the Chief Operations Officer of Riverwall Constructions.

Background of Mr Andrew Mamasioulas

132. Mr Andrew Mamasioulas holds a Diploma in Business Management and a Certificate IV in Construction. He is a qualified carpenter and joiner and has over 24 years experience in the construction industry.

133. Mr Andrew Mamasioulas started working at Riverwall Constructions in 1997 as an apprentice and remained with Riverwall Constructions until 2012.

134. Mr Andrew Mamasioulas left Riverwall Constructions in 2012 to start his own business. In 2017 he returned to Riverwall Constructions so that his father, Mr Satirios Mamasioulas, could move into semi-retirement. He joined his brother, Mr Fotios Mamasioulas, who was a director of Riverwall Constructions.

132. Mr Andrew Mamasioulas’ position as Chief Operating Officer included interacting with operations managers, construction managers, the Chief Financial Officer and general managers. He had oversight and control of the business operations including work health and safety at the various project sites through company managers.

133. One such manager was Mr Christopher Dedes. Prior to the incident Mr Dedes had been employed by Riverwall Constructions on and off for 16 years. Mr Andrew Mamasioulas was satisfied that Mr Dedes was a person who had the appropriate knowledge, experience, training, education and qualifications to be able to undertake a risk assessment of the site and identify power lines.

134. Mr Andrew Mamasioulas attends project sites in the following circumstances:

1. When an issue relating to safety, non-compliance and/or non-conformity has been escalated to him.

2. For serious building defects and/or variations to the contract.

3. When a client, contractor or staff member requests an onsite meeting.

4. To conduct a random inspection.

5. To undertake performance reviews of staff.

Background of Riverwall Constructions

138. Riverwall Constructions is a family run business with over 30 years experience in construction and project management. The business was founded in 1987 by Mr Satirios Mamasioulas. The company itself was first incorporated in 1996 (PX 1, Tab 4).

139. Riverwall currently employs approximately 24 full-time employees.

140. Riverwall Constructions has no previous convictions under the Act in NSW (PX 1, Tab 3). Mr Andrew Mamasioulas is only aware of one other interaction that Riverwall Constructions has had with SafeWork NSW. This was in 2018 when one of its subcontractors had an incident at its site. The incident was investigated and no action was taken.

The Incident

141. On 15 January 2019 Riverwall Constructions engaged Perry’s Roofing to provide a roof report at the request of Procare. Riverwall Constructions has had a working relationship with Perry’s Roofing for 38 years.

142. Riverwall Constructions was not involved in the preparation of the roof report and did not access the roof at any time.

143. Riverwall Constructions then engaged Perry’s Roofing to undertake the roof replacement works.

144. On 11 February 2019, towards the end of the day as work was wrapping up, Mr White and Mr Higham, who were both self-employed contractors engaged by Prime Metal, approached Mr Holloway, the director of Prime Metal and supervisor of the Prime Metal workers on the site, and asked whether there was any additional work to do before leaving for the day. They were told that they could remove the handrails or loosen the screws of the handrails of the edge protection that was located on the southern edge of the warehouse roof.

145. Mr Andrew Mamasioulas stated that he was unaware of this being a common practice and said that it should have been left to the scaffolders.

146. Prior to the incident, Mr Andrew Mamasioulas was not aware of the existence of Prime Metal or their involvement in the project.

147. Riverwall Constructions and its representatives cooperated with SafeWork NSW during its investigation of the incident.

Systems of Work before the Incident

148. Riverwall Constructions had an Integrated Management System (IMS) that provided a framework for workers and management. The IMS was reviewed by an independent consultant in 2018. The improved IMS had not been fully implemented at the time of the incident.

149. The IMS included:

1. Work Health and Safety Policy, Code of Conduct Policy, Compliance Policy, Standards of Employee Performance Policy, Hazardous Manual Tasks Policy.

2. Site-Specific Project Plan and project manuals.

3. SWMSs and flowcharts.

4. IMS audit form.

5. Standard operations procedures.

6. Safety data sheets.

7. Training materials.

150. Riverwall Constructions also had the following systems in place:

1. Contractor management procedures, including a Contractor Safety Management Checklist, SWMS Review Checklist, Site Induction Checklist and a Subcontractor Introduction and Application Pack.

2. Procedures for training construction/project managers in the systems-based risk management processes. Construction/project managers were to ensure all personnel and contractors complete the required documentation.

3. Procedures for training employees in the IMS and conducting monthly management meetings.

151. Riverwall Constructions had a General Site Activities SWMS which contained a risk assessment in relation to the most common risks at a site, including hazardous tasks and the set-up of electrical supply.

152. Mr Dedes required Perry’s Roofing to complete a site-specific SWMS for the re-roofing of the building.

153. Mr Andrew Mamasioulas stated at par 72 of his affidavit that he placed a great deal of reliance on Mr Dedes. Mr Dedes was required to and did undertake his own site-specific risk assessment. Mr Dedes conducted a review of the Perry’s Roofing SWMS to check that it was site-specific, that it addressed the issues that needed to be addressed and that it had been signed by Mr Perry and his employees. However, Mr Dedes failed to identify that the SWMS did not address the risk of electrocution posed by the overhead power lines.

154. An independent report was produced by Silver Wolf. The report included photos of the site taken by a drone, one of which depicted the area of the roof where the incident occurred and power lines running near to the side of the roof. Mr Andrew Mamasioulas stated at par 73 of his affidavit that that he would have expected Mr Dedes to read this report and identify the risk of electrocution from working near power lines and take appropriate precautions.

155. A site-specific Project Plan was prepared for the project. The Project Plan stated that Riverwall Constructions was responsible for controlling risks related to work done at its sites. It said that contractors working on the site were responsible for conducting risk assessments and preparing SWMSs for high risk construction tasks they undertook.

156. In par 84 of his affidavit Mr Andrew Mamasioulas acknowledged that the “Construction Work Site Checklist”, against which the SWMS was checked by Mr Dedes on 9 February 2019, did not mention power lines. Neither Perry’s Roofing not Riverwall Constructions identified the risk of power lines at the site and no changes to the Perry’s Roofing SWMS were requested by Mr Dedes.

157. Mr Andrew Mamasioulas has never been able to talk to Mr Dedes about the conversation he had with the contractors relating to the proximity of the power lines (referred to above). This is due to a mental breakdown Mr Dedes suffered immediately upon becoming aware of the incident.

158. Mr Andrew Mamasioulas stated that he is mystified as to why Mr Dedes did not respond to the contractors’ warnings of the proximity of the power lines. On many previous occasions Mr Dedes had identified a risk caused by power lines, stopped all work and removed the risk before recommencing work.

Systems of Work after the Incident

159. Following the incident, SafeWork NSW issued Prohibition Notice 46514 to ensure that no plant or thing comes within four metres of high voltage power lines at the workplace. Riverwall Constructions immediately complied with this notice.

160. Riverwall Constructions improved its WHS procedures by:

1. Updating its site-specific Project Plan to specifically provide for work conducted near energised electrical installations.

2. Requiring a specialist contractor to inspect any area that cannot be visually inspected by Riverwall Constructions.

3. Updating its Health and Safety Management System Manual.

4. Requiring management review meetings following attendance by Mr Andrew Mamasioulas at project sites.

5. Developing a new contractor management system.

6. Appointing a compliance and operation manager.

7. Engaging third party HR Consultants

8. Requiring the WHS officer to review all site-specific documentation. Previously this was the responsibility of the Construction Manager.

9. Updating its training and induction programs.

Apology

161. Mr Andrew Mamasioulas said that Riverwall Constructions is deeply sorry that the death of Mr White and the serious injuries of Mr Higham occurred as a result of its failure to ensure their safety.

162. Mr Andrew Mamasioulas stated at par 110 of his affidavit:

“I would like to publicly put on record to Mr White’s family how sorry I am for their loss and to Mr Higham how sorry I am for the serious injuries he sustained.”

163. Mr Andrew Mamasioulas made a personal apology in court to the family of Mr White.

164. Mr Andrew Mamasioulas stated that the incident has had a profound impact on him. The incident has brought to the forefront of his mind the responsibilities he has for the safety of employees, contractors and visitors.

165. I accept that these expressions of contrition, remorse and responsibility were genuine.

Good Corporate Citizenship

166. Mr Andrew Mamasioulas stated that over the years Riverwall Constructions has provided the following support to the community:

1. A sponsorship to the Reach Foundation, a youth not-for-profit organisation.

2. Assistance in renovating the home of an employee’s son, who had received a terminal cancer diagnosis. In total $113,921.02 was spent by Riverwall Constructions.

3. Mr Fotios Mamasioulas is a board member of the Master Builders Association of NSW (MBA). Riverwall Constructions is one of the only tier 4 construction companies on the board of the MBA and has been a member of the MBA for the past 22 years. Once a month Mr Fotios Mamasioulas organises educational materials and speakers to attend a meeting to educate builders on the most current information and to enable builders to obtain their CPD points.

4. Worked closely with Fire and Rescue NSW and the NSW Police Force to ensure that buildings are safe to enter in the event of an incident.

5. Volunteering and financially contributing to the St Sophia and Three Daughters Greek Orthodox Church.

167. Mr Andrew Mamasioulas annexed to his affidavit four reference letters from:

1. Roman Daniels Suit Club, a customer of Riverwall Constructions.

2. Panthera Property Group, a longstanding client of Riverwall Constructions.

3. Dr Michael Finkelstein, a customer of Riverwall Constructions.

4. St Sophia and Three Daughters Greek Orthodox Church.

Consideration

168. 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

169. 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].

170. 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].

171. 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.”

172. 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].

173. 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.

174. 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.

175. 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.”

176. 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.”

177. 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.”

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

1. Riverwall Constructions knew of the risk. In any event the risk was obvious and foreseeable as there was guidance material directed to this particular risk.

2. The likelihood of the risk occurring was high. Young and relatively inexperienced workers were dismantling handrails while in close proximity to the power lines.

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

4. Simple and well-known steps were readily available to eliminate or minimise the risk. These steps should have been taken long before any worker stepped onto the roof.

5. There was no great burden or inconvenience in these steps being implemented.

6. Two young labourers were put at risk of death or serious injury. Mr White died as a result of being electrocuted. Mr Higham suffered serious flash burns to both legs.

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. Mr Dedes, who was the senior Riverwall Constructions person at the site, had his attention drawn by contractors not only to the existence of the power lines, but also to the danger they posed to workers. Riverwall Constructions does not dispute that these blunt warnings were dismissed in a most offhanded way.

9. The Scope of Works contained photographs which showed the power lines. They were clearly visible to anyone who cared to look. The Project Plan stated that Riverwall Constructions was responsible for risks related to its work. Riverwall Constructions checked the Perry’s Roofing SWMS but failed to realise that the SWMS did not deal with the risk posed by the power lines.

10. Counsel for Riverwall Constructions submitted that there is no allegation that Riverwall Constructions had to identify the power lines or the risk that they posed, as that requirement was imposed on Perry’s Roofing (MFI 2, par 9). I reject this submission. Riverwall Constructions had to check that the Perry’s Roofing SWMS dealt thoroughly with all hazards. It could only properly check whether Perry’s Roofing had it right, by giving its own independent consideration to the site and its potential hazards.

11. Counsel for Riverwall Constructions also submitted that while the existence of the power lines was brought to the attention of Mr Dedes three days before the incident, there is no pleaded allegation that Riverwall Constructions failed to take action in those three days, and no charge of that failure constituting an offence (MFI 2, par 38). The underlying premise of the submission is that the failure of Mr Dedes to take appropriate steps after those conversations is not important in relation to the objective seriousness of the offence, or at the very least that undue weight should not be given to that agreed fact.

12. The initial failure to spot the inadequacies in the Perry’s Roofing SWMS (it was generic and not site-specific) was bad enough, but there was an egregious failure by Riverwall Constructions to make a proper assessment of the Perry’s Roofing SWMS, after Mr Dedes had been informed that the power lines were there, and that contractors on site perceived them to be a hazard. These matters are most relevant to the assessment of objective seriousness.

13. I accept the submission of counsel for the prosecutor that Riverwall Constructions breached its duty to properly consider the adequacy of the Perry’s Roofing SWMS every day until the incident occurred.

179. Counsel for the prosecutor submitted that the objective seriousness of the offence was well into the high range (MFI 1, par 18). Counsel for Riverwall Constructions submitted that the objective seriousness fell into the mid range (MFI 2, par 45), and modified this in oral submissions by accepting that it might be in the high end of the mid range.

180. For the reasons set out above I find that the level of culpability of Riverwall Constructions is in the high range.

Deterrence

181. 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].

182. The penalty must reflect the need for specific deterrence. Riverwall Constructions is still conducting a business. Its operations involve building and construction, and the continuing engagement of workers.

183. Mr Andrew Mamasioulas was cross-examined by counsel for the prosecutor. This demonstrated that in August 2021 an audit was conducted of safety documents. That audit discovered that a SWMS, accepted by Riverwall Constructions in March 2021 as being adequate and site-specific, was not adequate or appropriate. It is not without significance that the SWMS was one given by Perry’s Roofing to Riverwall Constructions in March 2021. I accept the submission of counsel for the prosecutor that the fact that an inadequate SWMS was checked and accepted by Riverwall Constructions two years after the incident, the subject of these proceedings, demonstrates that there must be an element of specific deterrence in the sentence.

Aggravating Factors

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

Mitigating Factors

185. Riverwall Constructions does not have a previous record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999

186. Riverwall Constructions is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Riverwall Constructions has been in business for over 30 years.

187. Riverwall Constructions 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.

188. Riverwall Constructions 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.

189. Riverwall Constructions 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 Riverwall Constructions a 25% discount for an early plea.

190. Riverwall Constructions 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.

Parity

191. Perry's Roofing was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident which resulted in the death of Mr White and the injury to Mr Higham: SafeWork NSW v Perry’s Roofing Pty Ltd [2022] NSWDC 261. I assessed the culpability of Perry’s Roofing as being in the high range: Perry’s Roofing at [151]-[152]. I imposed a fine of $600,000 before a 25% discount for an early guilty plea. I note that the fine was moderated because of a reduced capacity to pay: Perry’s Roofing at [173].

192. 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].

193. 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.”

194. 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.

195. It is appropriate for the court to consider the respective contributions of Perry’s Roofing and Riverwall Constructions. 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].

196. I find that the culpability of Riverwall Constructions was greater than that of Perry’s Roofing, for the following reasons.

197. True it is that each had a different role to play on the site. However, both had the same duty under the Act – the duty to ensure safety, so far as is reasonably practicable: s 19(1) of the Act. The duty to ensure safety requires a person to eliminate risks to health and safety, so far as is reasonably practicable: s 17(a) of the Act. If risks cannot be eliminated, then they must be minimised: s 17(b) of the Act.

198. Riverwall Constructions had overall supervision on the site. It had an obligation to check the Perry’s Roofing SWMS. It had an obligation to inspect the site prior to commencement, to record and assess site-specific risks, and to propose suitable site-specific controls (PX 1, Tab 2, Agreed Fact 61).

199. The most senior and experienced person on the site was Mr Dedes. He had the authority and the power to ensure safety and direct how each contractor should do its work.

200. Mr Dedes was specifically warned by the conversation with Mr Irving of the existence of the power lines and the danger posed by them. It defies belief that, knowing of the danger and the risk, he did absolutely nothing. Under s 244 of the Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. The warning to Mr Dedes was a warning to Riverwall Constructions.

Application for an Order under Section 238 of the Work Health and Safety Act 2011

201. The prosecutor applied (PX 2) for an order under s 238 of the Act requiring Riverwall Constructions to fund the production of an educational video dealing: with the incident in which the workers were exposed to a risk of death or serious injury; the content, nature and operation of a suitable safe system of work; and the guidance material applicable to safe work on roofs and near power lines. The form of the order is set out as an annexure to MFI 1.

202. Mr Andrew Mamasioulas stated in par 106 of his affidavit that he agrees to assist SafeWork NSW in developing a video or animation to assist in improving industry safety.

203. I find that this is an appropriate case in which to make such an order.

Capacity to Pay a Fine

204. 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.

205. 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.”

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

Victim Impact Statements

207. The defendant was convicted at the Sentence Hearing on 30 August 2022.

208. 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).

209. 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).

210. 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).

211. 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.

212. 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.

213. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account on the basis that they demonstrate that the harmful impact of the death of Mr White on family victims is an aspect of harm done to the community.

214. The court received the written Victim Impact Statements of:

1. Mrs Rosalia White, the mother of Mr Joel White (PX 3).

2. Mr David White, the father of Mr Joel White (PX 4).

3. Ms Cayla Kabourakis, the twin sister of Mr Joel White (PX 5).

4. Ms Erin Marturano, the sister of Mr Joel White (PX 6).

5. Ms Demi Kovacs, the partner of Mr Joel White (PX 7).

215. I will restrict my consideration of the matters in the Victim Impact Statements to those topics specified in s 28(2), referred to above. Counsel for the defendant tendered a version of the Victim Impact Statements which objected to a small number of words and phrases, which were highlighted (DX 2). I will take into account the perceptions of the family victims concerning what they saw as to the failings of Riverwall Constructions, as evidence of their belief and state of mind, but not as evidence of any breach of the Act.

216. The five family victims read their statements to the court. As I said in my judgment in Perry’s Roofing at [182], it was heart rending to listen to each of these grief-stricken and shattered people read through their statements and to understand the devastating effect upon these family members of the breach of duty committed. I only wish that every employer in New South Wales could be required to watch a video of the Victim Impact Statements in this case being read in open court.

217. As I said in my judgment in Perry’s Roofing at [183]-[184], Mr Joel White was obviously a much-loved young man. He was humble, loyal and caring. He was a friend to everyone he knew. He was the life of every party. The five family victims who read their Victim Impact Statements will never be the same. Joel will always be with them. Some common threads run through the statements. All of the family victims are depressed, many are on medication and some have suicidal ideation. All have had medical assistance with their mental health, but there has been little improvement for any of the family victims. Their interpersonal relationships have deteriorated. Their ability to work has been affected, and in broad terms, their ability to enjoy life has been almost destroyed. It is hard to see any of them recovering to any significant degree. It has taken some years for this prosecution to come to court. One can only hope that once this case is finished, one small aspect of their stress and grief will be over.

218. As I said to the family victims after the reading of their statements had concluded, they have through their statements paid tribute to Joel, and greatly assisted the court to understand the harmful impact of the death of Mr White on his family, partner and friends. I take this into account on sentence, as an aspect of harm done to the community, as required under the sentencing legislation.

Costs

219. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the amount of $41,300.11.

Penalty

220. My orders are:

1. Riverwall Constructions Pty Ltd was convicted on 30 August 2022.

2. The appropriate fine is $800,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Riverwall Constructions Pty Ltd to pay a fine of $600,000.

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

5. Order Riverwall Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $41,300.11.

6. Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):

a. Within six months of the date of these Orders, the defendant is to fund (to a limit of $20,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses:

i. the incident in which Mr Joel White and Mr Higham (the workers) were exposed to a risk of death or serious injury on 11 February 2019 (the material date);

ii. the risk to which the workers were exposed on the material date;

iii. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which the workers were exposed on the material date as far as is reasonably practicable;

iv. other guidance material applicable to safe work on roofs and near power lines as deemed appropriate by SafeWork NSW;

b. The management of the project and the provider will be undertaken by SafeWork NSW;

c. The content of the project and the provider of the project are to be approved by SafeWork NSW;

d. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

e. The video is to bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales;

f. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

g. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

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Decision last updated: 14 September 2022