SafeWork NSW v SFS Management (Aust) Pty Ltd
[2025] NSWIC 18
•31 October 2025
|
New South Wales |
Case Name: | SafeWork NSW v SFS Management (Aust) Pty Ltd |
Medium Neutral Citation: | [2025] NSWIC 18 |
Hearing Date(s): | 3 September 2025 |
Date of Orders: | 31 October 2025 |
Decision Date: | 31 October 2025 |
Before: | Paingakulam J |
Decision: | In Industrial Court proceedings 2024/391261 (s 32 Summons), I make the following orders: |
Catchwords: | CRIMINAL LAW — work health and safety — offences — category 2 — fall from height — ice machine compressor fell through roof while workers were attempting to move it, injuring multiple workers — failure to ensure that the roof was structurally capable of supporting workers and compressor — guidance material readily available — Safe Work Method Statement did not refer to task of decommissioning and removing an item of plant — procedure adopted for lifting and moving compressor was informal and ad hoc — “one-off” failure, not systems failure — upper-mid range of objective seriousness |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) |
Cases Cited: | Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 |
Category: | Sentence |
Parties: | SafeWork NSW (Prosecutor) |
Representation: | Counsel: |
File Number(s): | 2024/391261 |
Publication Restriction: | Pursuant to s 146A(2) of the Industrial Relations Act 1996 (NSW), I prohibit the publication of evidence before the Commission, including evidence contained in documents received in evidence before the Commission, in relation to the death of Mr Bradley Fenech. |
JUDGMENT
SFS Management (Aust) Pty Ltd (SFS Management) employed and supplied workers to assist in the production, packaging and distribution of seafood by Sydney Fresh Seafood (Aust) Pty Ltd, trading as Fish in the Family (Sydney Fresh) in Wetherill Park, New South Wales. On 25 October 2022, Mr Duane Johns and Mr Bradley Fenech, employees of SFS Management, were assisting five workers from Coldline Refrigeration Management Pty Ltd (Coldline) to manually lift and move the compressor of an ice machine in the roof space above the Sydney Fresh main cool room. While the compressor was being moved, the roof of the cool room collapsed and six workers, including Mr Johns and Mr Fenech, fell 3.6 metres to the ground floor below, suffering serious injuries.
SFS Management appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed Mr Johns and Mr Fenech to a risk of death or serious injury contrary to s 32 of the WHS Act. The risk particularised at paragraph 11 of Annexure A to the Summons is as follows:
“The risk was the risk to workers, in particular Duane Johns and Bradley Fenech, suffering serious injury or death as a result of falling from height while working on the roof of the cool room.”
The maximum penalty for the s 32 offence is a fine of 17,315 penalty units ($1,860,843).
SFS Management also pleaded guilty to an offence that as a person who had a health and safety duty under the WHS Act in relation to the same matter in which Coldline had a duty under the WHS Act, it failed to consult, co-operate and co-ordinate activities with Coldline contrary to s 46 of the WHS Act. The maximum penalty for the s 46 offence is a fine of 1,155 penalty units ($124,127).
Facts
The prosecutor tendered a single Statement of Agreed Facts in relation to both offences. I have taken this document into account in coming to an appropriate sentence for each offence. What follows is a brief summary of the facts relevant to the offences to permit an understanding of the sentence imposed.
Background
SFS Management employed workers to assist in the production, packaging and distribution of seafood by its parent company, Sydney Fresh. Its sole director is Ms Veronica Marie Papacosta.
The Wetherill Park site consisted of an office with an attached warehouse and truck delivery area. The warehouse included storage areas, which themselves included several freestanding cool rooms which were used for the storage of ice and seafood. Sydney Fresh engaged Coldline to provide refrigeration services including installation, commissioning, repair and maintenance of refrigeration plant and equipment.
There were a number of workers involved in the incident. They included Mr James Megalli, the 49-year-old managing director of Coldline, and qualified refrigeration mechanic who often attended sites to service and install refrigeration equipment himself. Also involved were Mr Paul Papacosta, SFS Management’s Head of Wholesale Operations and Purchasing at the site since 2018, and Mr Duane Johns, who at 50 years of age had been SFS Management’s Distribution Manager at the site since 2020 and whose duties included assisting warehouse staff. Mr Bradley Fenech, a 42-year-old truck driver at SFS Management since 2018, also performed warehouse duties at the site and reported to Mr Johns.
Four Coldline employees who reported to Mr Megalli were also involved in the incident. They were 37-year-old refrigeration mechanic Mr Lat Awng Gunhtang, who had been employed by Coldline for approximately three years, 25-year-old fourth year refrigeration mechanic apprentice Mr Jayden Halford, and two first year refrigeration mechanic apprentices – 19-year-old Mr Carson Sperling and 21-year-old Mr Andrew Phan.
Events leading up to the incident
The cool room is a freestanding structure made of expanded polystyrene (EPS) panels that sits inside the warehouse building. Prior occupiers of the site had installed a large ice making machine above the roof of the cool room which was attached to a frame suspended from the ceiling of the building and dropped ice down through a hole in the cool room roof. When Sydney Fresh took over the site, this machine was still in operation.
In about April 2022, Sydney Fresh determined that this ice machine was not powerful enough to create the volume of ice that it required. It engaged Coldline to install two new ice machines. Approximately two months prior to the incident, Mr Megalli and Mr Papacosta decided that the compressor from the original ice machine could be used to replace a faulty compressor in an ice machine at SFS Management’s Drummoyne site. Mr Megalli indicated that Coldline would disconnect the compressor and arrange to remove it from the ceiling space.
About five days before the incident, an employee of Coldline attended the site and disconnected the original ice making machine from the compressor and suspended frame in preparation for the compressor’s removal and transportation to the Drummoyne location. On 23 October 2022, Mr Megalli informed Mr Papacosta that his father had passed away the previous day. Mr Papacosta told Mr Megalli not to worry about the removal of the compressor and to take time off to grieve his father.
The incident
On 25 October 2025 at approximately 1:30pm, Mr Megalli attended the site with Mr Halford, Mr Phan, Mr Gunhtang and Mr Sperling. They accessed the ceiling cavity of the cool room, which was about 2.9 metres above the ground floor, using a ladder supplied by Sydney Fresh and managed by SFS Management. Their intention was to lift and carry the disconnected compressor about six to seven metres across the ceiling space to the edge of the roof, overseen by Mr Megalli. A forklift supplied by Sydney Fresh and managed by SFS Management would then be used to lift the compressor from the edge of the roof to the ground. However, Mr Megalli decided that the compressor, which weighed 200 kilograms, was too heavy for them to lift and move, so he asked Mr Johns for assistance. Both Mr Johns and Mr Fenech agreed to assist and the three of them went up the ladder to the cool room.
A passageway between the cool room and another small internal room used for dry storage had a ceiling made of interlocking EPS panels that were secured to the walls by aluminium “C” channels. To reach the edge of the roof with the compressor, the workers were required to cross the passageway ceiling. There was no discussion about how much weight the EPS panels could withstand and no system of falls arrest in place. Further, there was no edge protection such as handrails or other barriers to prevent a worker falling over the edges of the roof space.
The seven workers positioned themselves evenly around the compressor. They picked it up and moved it a couple of metres before the passageway ceiling collapsed under the weight. Six workers fell through the ceiling onto the concrete floor of the passageway, with the seventh worker landing on the ceiling.
Injuries
The seven workers involved in the incident sustained the following injuries:
(1)Mr Johns sustained compression fractures in his back, a fracture in his fourth metatarsal bone in his left foot and abdominal injury.
(2)Mr Fenech sustained bilateral fractured ribs, flail chest, hemopneumothorax, T7 spinal compression, right humerus fracture and left shoulder bursitis with tendinopathy of rotator cuff.
(3)Mr Megalli sustained a laceration to his head and injuries to his back and shoulder.
(4)Mr Gunhtang sustained fractures to his vertebrae, left femur, right shoulder and eye socket, numerous lacerations, superficial femoral artery occlusion, traumatic vocal cord palsy and post-traumatic stress disorder.
(5)Mr Sperling sustained fractured vertebrae, eight thoracic spine disc bulges and acute post-traumatic stress disorder.
(6)Mr Phan sustained a head trauma, concussion, cervical and lumbar spine strain, shoulder strain, elbow strain, aggravated a pre-existing injury/laceration to his hand and post-traumatic stress disorder.
(7)Mr Halford was struck on the knee by the falling compressor, but remained balanced on the remaining cool room structure and did not fall to the ground below. He was taken to hospital for observation and released approximately four hours later.
Legal obligations and guidance material
Numerous SafeWork NSW codes of practice were available to SFS Management at the time of the incident. The SafeWork NSW Code of Practice “Managing the Risk of Falls at Workplaces” (August 2019) applies to all workplaces in New South Wales where there is a risk of a person falling from one level to another that is reasonably likely to cause injury. It provides identification of fall hazards as the first step in the risk management process with particular attention to be given to work tasks on fragile surfaces or near unprotected edges, and recommends contacting manufacturers, suppliers or structural engineers as required. It also refers to the requirements of cl 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) for PCBUs to ensure, so far as is reasonably practicable, that any work involving the risk of a fall is carried out on the ground or on a solid construction as defined in cl 4.2 of the WHS Regulation, and notes that the surface and its supports must be able to safely carry expected loads. Where this is in doubt, it emphasises the need for a structural engineer to determine the safe load capacity before use. Barriers designed and constructed to withstand the force of someone falling against them must also be provided to prevent a person falling over edges and into holes.
The SafeWork NSW Code of Practice “How to Manage Work Health and Safety Risks” (August 2019) was also available at the time of the incident. It states that there is often more than one business or undertaking involved in the same activity or workspace that may each have responsibility for the same health and safety matters. It provides that in such situations, duty holders should exchange information and work together in a cooperative and co-ordinated way to eliminate or minimise risks so far as reasonably practicable and never assume that someone else is taking care of a health and safety matter.
Finally, the SafeWork NSW Code of Practice “Work Health and Safety Consultation, Cooperation and Coordination” (August 2019) was available at the time of the incident. Under the heading “When must you consult, co-operate and co-ordinate with others?”, it states that duty holders should identify who else will be involved in the work and start discussions as soon as they are reasonably able to do so. Where they are not initially aware that others are involved in the work, they are to engage in consultation with others when asked to do so. Further, consultation should begin during the planning stages of the work to ensure that health and safety measures are implemented from the outset and should be ongoing, with a need for further consultation when circumstances change.
Systems of work prior to the incident
Coldline, Mr Megalli and SFS Management all failed to ensure that the work in the cool room roof was carried out from a surface that was structurally capable of supporting all persons and objects that were placed on it. The readily available information from the manufacturer and supplier of the EPS panels made it clear that they could not support the weight of the compressor and the workers.
Coldline’s Safe Work Method Statement (SWMS) for working on a roof, which was not signed by or explained to any of the workers, did not address the task of decommissioning and removing an item of plant. Its SWMS for working at heights generally referred to the need to use a work surface that is structurally capable of holding the weight of workers, plant and equipment, but again, this SWMS was not signed by any of the workers involved in the incident. The procedure adopted by Mr Megalli for lifting and moving the compressor on the day of the incident was informal and ad hoc.
There was no consultation or agreement between Coldline and SFS Management about how the work was to be carried out, or how to manage the risk of falls. Before agreeing to assist Mr Megalli, Mr Johns did not arrange for a risk assessment to determine whether the roof of the cool room was strong enough to take the weight of the plant, equipment and workers. Mr Johns and SFS Management did not require Mr Megalli to provide a SWMS or safe work procedure for the task or themselves require the installation of temporary edge protection or the installation of a working platform that was structurally capable of supporting all persons and objects that were placed on it.
In addition, SFS Management allowed Coldline to work at the site without proper sign-in procedures for contractors. There was no sign-in register and no training in contractor sign-in procedures for SFS Management managers and workers.
Systems of work after the incident
Following the incident, SFS Management developed and implemented a mandatory procedure for contractors to attend the office, sign in to the register and undertake contractor induction before commencing work at the site. SFS Management also trained its workers not to assist contractors in their work.
In response to SafeWork NSW Prohibition and Improvement Notices, SFS Management reviewed the contractor management systems manual and policy to ensure they were fit for purpose. They conducted Toolbox Talks and staff refresher training on contractor management. Managers were also given refresher training on onsite induction. New signage was installed to ensure that contractors attend the office to sign in and complete the contractor induction before commencing work at the site. Installation of a QR Code at the sign-in desk made the completing and recording of contractor visits easier to manage. SFS Management also began the process of transferring the contractor management system to a new safety platform.
Victim impact statements
The prosecutor tendered victim impact statements (VIS) from Mr Sperling and Mr Gunhtang. Both were admitted over the objection of SFS Management. Mr Sperling, who was 19 at the time of the offences, attests to ongoing physical pain and mental trauma from the accident. He lives with the financial implications of no longer being able to work and faces a future “without hope”.
In the aftermath of the incident, Mr Gunhtang was transported, unconscious, to Liverpool Hospital where he underwent surgery to address multiple injuries before being placed in an induced coma for several days. He now lives with vision impairment in his right eye, significant loss of function in his right hand, debilitating pain, vocal cord palsy preventing him from speaking and post-traumatic stress disorder. He is unable to work to provide for his wife and three young children.
The bases for the objection to the admission of this evidence were its very late service, such that it was not possible for SFS Management to test its content and that, as employees of Coldline, Mr Sperling and Mr Gunhtang’s evidence was not relevant to the s 32 offence. It was accepted that the evidence was relevant to the s 46 offence. However, as both parties accepted that the breaches caused substantial harm, the evidence was said to add little to the Court’s understanding of that issue.
Section 30E(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) requires the Court to take into account a VIS which has been tendered. In R v Tuala [2015] NSWCCA 8 Simpson J, with whom Ward JA and Wilson J agreed, held at [78]–[79] that a VIS may be used as evidence of substantial harm where no objection is taken to it (noting that it is admissible by statute), no question is raised as to the weight to be attributed to it and no attempt is made to limit its use. There is little difficulty in accepting the content of a VIS where it either confirms other evidence before the Court or attests to harm of a kind that might be expected from the offence in question. I have set out at [16] above the evidence before the Court concerning both the physical and mental impact of the offences on each of the victims.
In SafeWork NSW v 465 Leichhardt Pty Ltd [2025] NSWIC 5, Taylor J held at [44]–[45] that where the Court otherwise receives evidence establishing the impact of an offence on a victim, it is not the role of the Court to make factual findings based on the content of a VIS. In such cases, a VIS “allows the Court to hear directly from a victim on the impact that the offence has had on the victim and their family. It also allows the victim to be heard by the defendant”.
The Statement of Agreed Facts provides that Coldline was engaged by Sydney Fresh, not SFS Management. However, Annexure A to the s 32 Summons provides as follows at paragraph 3:
“At all material times, the defendant’s business or undertaking involved the management or control, in whole or in part, of a workplace located at 14-16 Cavasinni Place Weatherill (sic) Park in New South Wales (the Site).”
It then provides as follows at paragraph 6:
“At all material times, Coldline Refrigeration Management Pty Ltd (Coldline) was an approved contractor of the defendant who supplied refrigeration and mechanical services to the defendant, including the installation, commissioning, repair and maintenance and decommissioning and removal of refrigeration and ice making plant and equipment.”
Accordingly, by its plea, SFS Management accepted that it was supplied services by Coldline and had at least some management or control of the site where those services were provided. As such, it had capacity to influence or direct the activities of Coldline employees at work on the site, including Mr Sperling and Mr Gunhtang, giving rise to a s 19(1) duty. Further, even if the evidence of Mr Sperling and Mr Gunhtang is not relevant to the s 32 offence, it is relevant to the s 46 offence, as accepted by SFS Management.
Accordingly, I acknowledge the life-changing effect of this incident physically, mentally and financially on both Mr Sperling, who at 19 years of age had his whole life ahead of him with its promise and ambitions, and Mr Gunhtang, whose diminished existence has also had a profound impact on the lives of his wife and three young children. Both gentlemen were eloquent in capturing the ongoing trauma with which each of them lives as a consequence of what was plainly a preventable incident. Their evidence reminds the Court of the harm that such offences cause, but it does not increase the otherwise appropriate penalty. Rather, it confirms the extent of the substantial injury, loss and damage that can unfortunately be expected of such offences in their aggravated form.
Offender’s case on sentence
SFS Management relied on the affidavit of Ms Veronica Marie Papacosta sworn 18 August 2025. The following is a summary of her evidence in addition to matters already set out in the Statement of Agreed Facts.
Ms Papacosta is the sole Director of SFS Management and a Non-Executive Director of Sydney Fresh and Yumbah Aquaculture Ltd. She is also the Chief Executive Officer of Seafood Industry Australia (SIA), the national peak body of the Australian seafood industry. Prior to holding these roles, Ms Papacosta was the Managing Director of Sydney Fresh from March 2002 to June 2025 and Non-Executive Director and Committee Chair of East 33 Limited from July 2023 to December 2024.
Expression of remorse and contrition
On behalf of her family, SFS Management and senior management of the company, Ms Papacosta expressed her regret and deep remorse for the hurt that the incident caused the injured workers and their families. SFS Management also offered an unqualified apology for the breaches of the WHS Act found by the Court, and for exposing workers to risks to their health and safety.
Immediately after the incident, she and other family members visited both Mr Johns and Mr Fenech in hospital, although Mr Fenech’s injuries were such that they were only able to visit upon his family. They maintained regular phone contact with both families to ensure that they were financially supported. Access to an Employee Assistance Program (EAP) was provided to all SFS Management employees, including Mr Johns and his family. Furthermore, Ms Papacosta, Mr Papacosta and Ms Costi checked in with Mr Megalli and his wife on a regular basis to follow his recovery.
Mr Johns returned to work on light duties in June 2023 and his hours increased until he became full time again in November 2024. [REDACTED]. It also provided EAP access to Mr Fenech’s family as well as a number of SFS Management employees.
Ms Papacosta stated that she, SFS Management and its senior management have treated and will continue to treat the incident and the prosecution against them as matters of the utmost seriousness. They have made safety a priority and hope that their learnings from this experience can go some way to preventing a like incident from happening again.
About SFS Management
SFS Management’s predecessor company, “Penrith Seafoods”, originated in 1976 when Ms Papacosta’s mother, Ms Andrea Costi, opened their first store at the foot of the Blue Mountains. In 1990, Ms Papacosta’s brother joined the business. In 2000, Ms Papacosta joined the business following her completion of a Bachelor of Economics at the University of Sydney.
In 2002, Penrith Seafoods opened its second store at Wetherill Park. In 2009, it began selling seafood in Harris Farm Markets stores across Australia and changed its name to “Sydney Fresh Seafood”. In 2018, Sydney Fresh transferred its employees to SFS Management. In 2020, Sydney Fresh changed its trading name to “Fish in the Family”.
The SFS Management and Sydney Fresh business is a “Large Business Member” of SIA and a member of the Master Fish Merchants Association and OceanWatch Australia. It operates stores in New South Wales, Queensland and the Australian Capital Territory. Its 25 outlets are all within the Harris Farm Markets network except for the original Wetherill Park store. SFS Management currently employs 250 workers.
SFS Management makes a regular contribution of seafood to local events held for the Seasafe and Stay Afloat programs through SIA. It provides regular support to local community, school and cultural events with the provision of a barbecue octopus stand and an annual contribution of seafood for the Giant Steps School for Autism Gala Dinner fundraiser.
Ms Papacosta stated that the incident prompted her, as CEO of SIA, to orchestrate the development of an industry wide safety program, SeaSafe. Recognising the links between safety and fatigue or grief, she has also established a national mental health program for the seafood industry, Stay Afloat.
Consultation with Coldline
Coldline is the primary contractor that SFS Management uses for all its refrigeration work in Sydney. Prior to the incident, SFS Management had undocumented procedures in place which required contractors, including Coldline, to provide a plan and quote for any major works to be undertaken and to obtain approval from SFS Management prior to the work commencing. Verbal approval was required for any smaller regular jobs.
Ms Papacosta understood that Coldline had undertaken the planning and quote stage for the installation of the new ice machines at the site and had provided a SWMS to Mr Papacosta prior to commencing work. However, Ms Papacosta did not have any knowledge prior to the incident that Coldline was attending the site to begin work on removing the compressor from the original ice machine.
Pre-incident work, health and safety management and initiatives
Ms Papacosta gave unchallenged evidence of the following systems of work in place at the time of the incident, in addition to those set out in the Statement of Agreed Facts.
(1)A contracted Safety Officer, Ms Kelly Gilogly, conducted quarterly safety audits of Sydney Fresh’s 12 sites, discussed the results with the manager of each site and reached agreement on any improvements to be made.
(2)All new employees were required to participate in a safety induction upon commencement of their employment.
(3)A suite of work health and safety procedures were in place, including a Working at Heights Procedure, a Visitor Management Procedure, Worker Site Safety Rules, a Contractor Management Procedure and Contractor Site Safety Rules.
(4)Workers expected to work at heights in their capacity as SFS Management workers were required to review and sign onto the Working at Heights SWMS.
(5)A procedure provided for employees to report safety issues and incidents to their direct manager, who reported them to the Safety Officer for action and response. Once the first response was completed, the Safety Officer would inform the executive team about the issue or incident either by email or at a fortnightly executive meeting.
Systems of work after the incident
Ms Papacosta gave unchallenged evidence of the following steps taken after the incident in addition to those set out in the Statement of Agreed Facts.
SFS Management was issued with three regulatory notices in the aftermath of the incident, at which point it set up a working group. Recovery Partners was then engaged to respond, review the company’s safety program and investigate the failures that led to the incident. As a result of this review, SFS Management engaged a structural engineer to assess the structural integrity of the cool room roof and a contractor to install a safe system for working at heights. Barely a week after receiving the second regulatory notice, it emailed SafeWork NSW providing a copy of an action plan in response. On receipt of the third regulatory notice, SFS Management engaged Milton Webster, Structural Consultant, to develop a plan to respond. SFS Management also delivered a Toolbox Talk to its employees regarding the safe system for working at heights and engaged ACR Coolrooms to install a guardrail around the perimeter of the cool room roof area. The Prohibition and Improvement Notices were closed out on 10 December 2024.
In addition to the above measures, SFS Management has conducted Toolbox Talks with employees to reinforce the rule that employees cannot assist contractors in completing their work. It now holds regular safety meetings and training with all managers and executives and has engaged Recovery Partners as an ongoing safety contractor for all sites.
Consideration
I have had regard to the objects of the WHS Act set out in s 3 and the purposes of sentencing set out in s 3A of the CSP Act.
I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).
The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].
Objective seriousness
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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].
This task requires the Court to consider where the conduct of SFS Management falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):
“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.”
The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].
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].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively.
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:
“[34] The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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.”
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 pressure event of the force 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.”
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:
“ … It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”
Section 32 offence
The prosecutor submitted that this offence falls within the upper half of the mid-range of objective seriousness. The risk of the roof collapsing while multiple people were working on it was foreseeable, and a cursory reading of the manufacturer’s document that identified the load that the EPS panels could safely support would have established that the panels were not strong enough to withstand the weight of seven workers and the 200kg compressor. However, SFS Management did not make that enquiry. Therefore, the likelihood of the risk occurring was “virtually certain”. The risk of workers falling from height while working on the roof of the cool room was also an obvious and foreseeable risk by reason of the guidance material available to SFS Management at the time.
SFS Management, which was responsible for the system of work of its employees who entered the roof space, had employed workers at the site over many years and had previously assisted Coldline to move objects around the site. It had requested Coldline to relocate the compressor from the original ice machine at the site to Drummoyne. It had control over the persons who were allowed to access the roof space and the equipment used by the workers. Despite this, it did not require Coldline to provide a SWMS or safe work procedure for the task and instead adopted a “hands off” approach to the work. It was complicit in the ad hoc and unsafe procedure adopted, including by allowing Mr Johns and Mr Fenech to assist with the task. In addition, there was no effective sign-in procedure in place for contractors to follow before the work commenced.
More than one worker was exposed to the risk of death or serious injury. There was no particular burden or inconvenience in implementing the steps available to eliminate or minimise that risk. The injuries sustained by Mr Johns and Mr Fenech were serious and could easily have been worse.
SFS Management contended that its culpability had to be determined in the context of the role played by Coldline in the creation of the risk which manifested in the incident on 25 October 2022. It stated that it had a working at heights procedure, and it was Coldline that had no safe work method in place. SFS Management submitted that the significantly greater culpability of Coldline was important in assessing its culpability and that its mistake was to allow Coldline to perform any work before all safety issues were investigated.
SFS Management contended that the objective seriousness of the offence was at the low end of the mid-range by reference to the decision of Russell DCJ in SafeWork NSW v Saunders Civilbuild Pty Ltd [2024] NSWDC 245 (Saunders), a case where the risk of falling through an infill panel on a bridge into freezing water was obvious, had been raised by employees at the site and resulted in “severe injury” to a worker. However, it acknowledged that the risk of falling from height is a serious and preventable one.
I accept that the failure of Coldline to identify any sort of safe work method for the task, as identified by SFS Management and reflected in the Statement of Agreed Facts, contributed significantly to the manifestation of the risk. I also accept that SFS Management’s failure to ensure that Coldline had put appropriate safety systems in place to remove the compressor needs to be viewed in the context of the lack of advance notice given to SFS Management about Coldline’s intention to undertake the work on that day. However, in determining the objective seriousness of the offence, the focus remains on the failure of SFS Management to meet its statutory obligation. In Workcover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd (2009) 186 IR 125; [2009] NSWIRComm 92, Walton J, Vice President, held at [241]–[242] (emphasis added):
“[241] There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.
[242] The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald’s at 437. Such an analysis may assist in understanding the reasonableness of the defendants’ actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution …”
By its plea of guilty, SFS Management accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:
“(a) Undertake a risk assessment which identified the risk of the roof collapsing by reference to the weight of the compressor unit (approximately 200 kilograms) and the seven workers, and the maximum load capacity of the EPS panels comprising the ceiling (140 kilograms each panel).
(b) Require Coldline and/or its director, James Megalli to provide a safe work method statement (SWMS) or safe work procedure that related specifically to the work of removing the compressor of the ice machine in the roof space of the cool room prior to the commencement of the work.
(c) Prohibit the performance of work in the roof space of the cool room until it was first determined that the roof of the cool room was structurally capable of supporting the weight of the workers and the plant and equipment to be situated in that space.
(d) Install, or arrange to install, in the roof space of the cool room a working platform that was structurally capable of supporting all persons and things that were to be located or placed on it.
(e) Install, or arrange to install, temporary edge protection in the roof space, such as handrails or other physical barriers around the perimeter of the roof space.
(f) Dismantle or break up, or arrange for the dismantling or breaking up of, the compressor unit into smaller, lighter parts before lifting and moving them in the roof space above the cool room, in order not to exceed the maximum load capacity of the EPS panels.
(g) Set up a proper system for contractor management and induction at the site and proper sign-in procedures.
(h) Maintain and enforce a sign-in register for contractors, including Coldline, to be required to use at the Site before the commencement of work by the contractors.
(i) Maintain and enforce a requirement for contractors, including Coldline, to report themselves to the Site office and obtain prior approval before the commencement of work by the contractors.
(j) Install signage at the Site for contractors to attend the Site office for signing-in before the commencement of work by the contractors.
(k) Conduct training for the defendant's managers and supervisors at the Site in the contractor sign-in procedures, as well as in the on-site signage for contractors to attend the office for sign-in.”
Plainly, those measures extend beyond preventing Coldline from performing any work before safety issues were investigated. Measures (g)–(k) are concerned with the control of contractor access to the site, the absence of which was said to have contributed to the ad hoc nature of what unfolded. While I am not entirely convinced about the validity of that causal connection in circumstances where SFS Management was aware that Coldline was on site and working in the roof space, I proceed on the basis that the defendant has accepted by its plea that it failed to implement those measures.
My finding about the objective seriousness of the offence is based upon the following factors:
(1)The inability of the EPS ceiling to hold the weight of the compressor and the seven men required to move it was obvious. However, nobody turned their mind to that issue and there is no explanation provided for that oversight.
(2)Although SFS Management was not expecting anyone from Coldline to turn up and do the work on that day, it is clear for the reasons set out below that the removal of the compressor had been imminent and SFS Management had not required Coldline to provide a safe work method for the task. Accordingly, no precautions were taken either to prevent ceiling collapse or to prevent someone falling over the edge of the ceiling platform.
(3)The incident which occurred was the inevitable consequence of the process adopted by Coldline, assisted by SFS Management, to remove the compressor from the cool room, given the inability of the roof ceiling to support the weight of the compressor and seven workers.
(4)The potential consequences included death or very serious injury.
(5)Seven workers were exposed to the risk and the serious injuries sustained by Mr Johns and Mr Fenech were a manifestation of that risk.
(6)There were things that SFS Management could have done to eliminate or minimise the risk, as explained in the ample guidance material available.
(7)Many of the measures that SFS Management accepts by its plea that it could have taken were not burdensome, which is demonstrated by the steps that it took to quickly rectify the situation after the incident. However, even where those measures involved structural adjustment to the cool room ceiling, the burden or inconvenience of implementing those measures is of less significance because of the inevitability of what occurred without those measures in place.
(8)The failure which occurred was a “one-off” failure and not a systems failure.
Taking the above matters into account, I find that the objective seriousness of the offence falls at the upper mid-range. It is an objectively more serious offence than that in Saunders. In that case, the project manager had been actively misled both about the measures that had been implemented and the adequacy of what was in place, there were fewer people exposed to the risk and the manifestation of the risk was not inevitable, as was the case here.
Section 46 offence
Risk is not an element of an offence pursuant to s 46 of the WHS Act. However, the potential consequences of a failure to consult, co-operate and co-ordinate with another s 19(1) duty holder are inherently connected with the risk to health and safety of workers that each duty holder has a duty to eliminate or minimise so far as is reasonably practicable. Accordingly, that risk must inform an assessment of the objective seriousness of the offence.
Paragraphs 9–11 of Annexure A to the s 46 Summons provide that the s 19(1) duty to ensure the health and safety of workers shared by SFS Management and Coldline included a duty to manage the risk of falling from height while working on the roof of the cool room. Paragraph 12 of the s 46 Summons then provides as follows:
“Particulars of the risk
The risk was to workers, in particular Duane Johns, Bradley Fenech, James Megali, Jayden Halford, Andrew Phan, Lat Awng Gunhtang and Carson Sperling, suffering serious injury or death as a result of falling from height while working on the roof of the cool room.”
The prosecutor submitted that this offence falls within the mid-range of objective seriousness, because SFS Management did not have any systems to establish that Coldline had measures in place to ensure that the roof was structurally capable of holding the weight of the workers and the compressor, in order to eliminate or minimise the risk.
SFS Management did not distinguish between this offence and the s 32 offence in addressing the objective seriousness of the offending and instead referred to the significant overlap between them (a matter addressed below in the context of totality).
By its plea of guilty, SFS Management accepts that it could have taken the following reasonably practicable measures to consult, co-operate and co-ordinate activities with Coldline, in circumstances where each had a duty to manage the reasonably foreseeable risk:
“(a) Consult with Coldline about the hazards and risks associated with the removal of the compressor and the ice machine from the roof of the cool room, including the risk of falling from one level to another or falling through the ceiling panels.
(b) Consult with Coldline about the control measures that should be implemented to control the risk of falling from heights while working in the roof space above the cool room, in particular:
(i) Making enquiries with the manufacturer of the EPS panels comprising the ceiling, Bondor Australia Pty Ltd, as to the load bearing capacity of the EPS panels before the work commenced in the roof space;
(ii) Dismantling or breaking up of the compressor unit into smaller, lighter parts before moving it in the cool room roof space;
(iii) Installing temporary edge protection around the roof perimeter, such as handrails;
(iv) Installing in the roof space of the cool room a working platform that was structurally capable of supporting all persons and things that were to be located or placed on it.”
Plainly, the above consultation is something that could have been implemented without great burden or inconvenience to SFS Management. I accept that the opportunity for consultation with Coldline was unexpectedly cut short by Coldline’s attendance without notice on the day of the incident to undertake the work. However, it is an agreed fact that a Coldline employee attended the site five days earlier and disconnected the original ice machine from the compressor in readiness for the compressor’s relocation to Drummoyne. Accordingly, the removal of the compressor was then imminent.
That SFS Management expected that the removal of the compressor was then imminent is reinforced by the conversation between Mr Papacosta and Mr Megalli on 23 October 2025 that Mr Megalli should not worry about the removal of the compressor and take the time to grieve for his father. However, I accept that the seriousness of SFS Management’s failure to consult with Coldline about how to do the job safely prior to it proceeding is slightly moderated by Coldline’s attendance without notice on 25 October 2022. Nonetheless, the absence of any formal process to consult with Coldline about the safety measures that needed to be in place must put this offence in the upper mid-range.
Moral culpability of SFS Management
I accept that SFS Management had a longstanding relationship with Coldline and was relying on it to ensure that the compressor was safely removed from the cool room for transit to Drummoyne. As the provider and installer of the ice making machines in use at the site, SFS Management was entitled to expect Coldline to identify and implement a safe method for removing the compressor from the site. However, that in no way derogated from SFS Management’s obligation under s 46 of the WHS Act to consult with Coldline to ensure that this had occurred.
Further, as a controller of the site, SFS Management should have ensured that work being conducted on the site occurred safely. Once SFS Management’s employees were involved in the task, it should have satisfied itself that the work which those employees were asked to do did not present a risk to their health or safety. Accordingly, while I accept that Coldline has a greater moral culpability for what occurred in relation to the s 32 offence, the moral culpability of SFS Management remains significant given the patently dangerous nature of what occurred and the absence of any checks or balances to prevent it.
Aggravating factors
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].
The s 32 offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The very significant injuries to Mr Johns and Mr Fenech, as detailed in the Statement of Agreed Facts and set out above at [16], plainly establish this aggravating factor.
As noted above, the risk of injury (serious or otherwise) is not an element of the s 46 offence. I am satisfied of this aggravating factor due to the substantial injuries to six workers resulting from this offence as set out in the Statement of Agreed Facts and above at [16].
For abundant clarity, I confirm that I reach this conclusion in respect of each offence based on the material in the Statement of Agreed Facts and without the need to have recourse to the VIS of either Mr Sperling or Mr Gunhtang. It is a conclusion that was accepted by both parties at the sentence hearing.
Mitigating factors
SFS Management has no prior convictions: s 21A(3)(e) CSP Act.
SFS Management is of good character: s 21A(3)(f) CSP Act. In addition to an absence of criminal antecedents over its five-year period of operation, it has a history of regular and ongoing contributions of seafood to a range of community events as set out at [44] above.
Because of its acceptance of responsibility for what occurred, its cooperation with SafeWork NSW’s investigation and the steps that it has taken to improve its systems since the incident, I find that SFS Management is unlikely to reoffend (s 21A(3)(g) CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) CSP Act).
SFS Management has shown remorse for the offences: s 21A(3)(i) CSP Act. It has accepted responsibility for its actions and acknowledged that its failures led to the injury of Mr Johns, Mr Fenech and the Coldline employees. This is further demonstrated by the support provided to Mr Johns, Mr Fenech and their families as well as to Mr Megalli.
SFS Management entered a plea of guilty on 30 June 2025 to charges particularised in summonses dated 21 October 2024 and is entitled to a discount on penalty that reflects the utilitarian value of those early pleas: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. The pleas of guilty were entered approximately eight months after the commencement of the proceedings and on the fourth occasion on which the matters came before the Court.
While SFS Management is undoubtedly entitled to a significant discount to reflect the utilitarian benefit of those pleas, their timing is not one that ought routinely to attract the maximum 25% discount. However, SFS Management entered pleas of guilty to the original charges laid and advised the Court of its intention to enter a plea of guilty to those charges on 14 April 2025 at the second mention of those matters. The reason for that not occurring for a further two and half months was partly due to delays by the prosecutor in considering the revised facts proposed by SFS Management. In those circumstances I accept that a discount of 25% is appropriate: ss 21A(3)(k) and 22 CSP Act.
I have summarised at [50] above the evidence from Ms Papacosta concerning SFS Management’s compliance with the regulatory notices issued by SafeWork NSW following the incident. SFS Management submits, and I accept, that its cooperation with the authorities ought to be characterised consistently with the decision of this Court in SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4 at [89]:
“(3) Assistance provided by an offender who takes proactive steps in response to a regulatory notice, and embraces the opportunity which it presents, should not be viewed as favourably as assistance which is entirely voluntary (but can be contrasted with unwitting assistance which has been construed to fall outside s 23(1)).”
Accordingly, it is a matter that should afford SFS Management a modest discount on the sentences to be imposed: s 21A(3)(m) CSP Act.
Deterrence
The penalty imposed in relation to these offences must provide for general deterrence. The community is entitled to expect employers to comply with their obligations to provide a safe working environment for employees. Where this does not occur, general deterrence is a significant factor: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [180]. That remains the case notwithstanding that the circumstances of this offence do not represent the typical fall from heights case with which the courts are unfortunately very familiar.
In relation to specific deterrence, I accept that, at the time of the incident, SFS Management had regard for its safety obligations. This was reflected in the safety systems in place which included procedures for working at heights and visitor management, and its absence of prior convictions. It had also demonstrated a commitment to safety in the engagement of a safety officer who conducted quarterly audits across both its retail and wholesale operations. Accordingly, I find that there is a reduced need for the sentences imposed upon SFS Management to provide specific deterrence. I am fortified in that view by the measures taken by SFS Management since the incident, as set out above, noting in particular the engagement of Recovery Partners both to conduct a review of all existing systems and processes and in an ongoing advisory capacity.
Capacity to pay a fine
Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of SFS Management before imposing a fine. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance. I have regard to such matters to the extent that I am able in circumstances where there was no evidence before the Court concerning the financial position of SFS Management and no submission made concerning SFS Management’s capacity to pay a fine.
Totality
The totality principle has application to the imposition of fines which may require some modification to ensure that the aggregate total is an appropriate reflection of the overall criminality: Environmental Protection Authority v Barnes [2006] NSWCCA 246 per Kirby J at [49]–[50].
It was accepted by both parties that there was a degree of overlap between the two offences. However, the extent of that overlap was a significant issue between them. The prosecutor submitted that the two charges form a different function and that the measures which were the subject of the s 32 offence should have occurred as a consequence of the measures which were the subject of the s 46 offence. The s 46 offence was said to be serious because compliance with those measures would have prevented the incident which ultimately took place. SFS Management’s position was that there was a substantial overlap between the charges.
I accept that proper consultation, co-operation and co-ordination in accordance with s 46 of the WHS Act could have prevented the incident. That is largely because that consultation co-operation and co-ordination would have involved the implementation of measures which are contained in Annexure A of the Summons for the s 32 offence. Accordingly, I accept the submission of SFS Management that there is a substantial overlap between the offences.
Two examples suffice. First, the requirement for SFS Management, in connection with the s 46 offence, to consult with Coldline about the hazards and risks associated with the removal of the compressor (including falling through the ceiling panels) (paragraph 15(a) of Annexure A to the s 46 summons), and the control measures that should be implemented to control the risk of falling from heights while working in the roof space (paragraph 15(b) of Annexure A to the s 46 summons) would have been significantly progressed by requiring Coldline or Mr Megalli to provide a SWMS or safe work procedure that related to removing the compressor of the ice machine from the roof space prior to the commencement of the work (paragraph 12(b) of Annexure A to the s 32 summons).
Second, paragraph 12(c) of Annexure A to the s 32 summons requires SFS Management to prohibit the performance of work in the roof space of the cool room until it was first determined that the roof was structurally capable of supporting the weight of the workers and the plant. To make that determination, either SFS Management or Coldline could have made enquiries with the manufacturer and then dismantled or broken up the compressor, or alternatively, installed a working platform in the roof space that was able to support the work. The consultation with Coldline that was required to do this is the subject of paragraphs 15(b)(i), (ii) and (iv) of Annexure A to the s 46 summons. However, installing the work platform and dismantling or breaking up the compressor are also the measures contained in paragraphs 12(d) and (f) respectively of Annexure A to the s 32 summons. Practically speaking, they are not measures that could have been implemented without consultation and co-operation with Coldline. This is reflected in the fact that co-operation with Coldline to implement those measures is the subject of paragraph 15(c) of Annexure A to the s 46 summons.
Comparable s 32 cases
SFS Management submitted that a fine of around $300,000 after discount features prominently in the authorities, referring the Court to SafeWork NSW v Newcastle Roofing Professionals Pty Ltd [2025] NSWDC 155 (Newcastle Roofing); SafeWork NSW v PV Solar Pro Pty Ltd [2021] NSWDC 258 (PV Solar); SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467 (Canon Roofing Solutions); SafeWork NSW v Metro Crane Services Pty Ltd [2023] NSWDC 144 (Metro Crane Services). SFS Management noted that these cases involved the offender’s failure to have a system in place to deal with the risk.
In Newcastle Roofing, the offender used the lesser protection afforded by a harness and anchor point system to prevent workers falling from the roof because of the additional cost of installing scaffolding, which the client refused to meet. It therefore put its own financial interests ahead of the safety of its workers. In PV Solar, a young apprentice wearing a harness and connected via a lanyard to an anchor point on a roof suffered fatal injuries when he fell through an exposed skylight, marked with a cone to draw attention to it, because the rope grab was set too far down and he hit the ground before it took effect. In Canon Roofing Solutions, a worker fell through an unsecured roofing sheet when not wearing the safety harness provided to him to prevent such a fall. In Metro Crane Services, a worker who had looked for but been unable to find a harness fell through a skylight with no fall arrest system in place.
In all but the last of these cases, there had been some attempt by the offender, however inadequate, to put in place a system to eliminate or minimise the risk of falling which had been identified and which ultimately materialised. The same could not be said in relation to the subject offence. Further, the appropriate fine in these cases, prior to the application of the discount for the utilitarian benefit of the plea, was $400,000. These fines were imposed in the context of a lower maximum penalty, ranging from $1.5 million to $1,782,759.
By contrast, the prosecutor directed the Court to the decision of SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165. The appropriate fine in that case, prior to the application of the discount for the plea of guilty, was $540,000 in the context of a maximum penalty of $1.5 million. The Court found the offence in that case to be an upper mid-range offence, notwithstanding that it was a one-off event and not a systems failure. It occurred in the context of a formworker falling from the roof of a building through a plainly visible unguarded 19 metre penetration with no fall arrest system in place.
I have regard to the penalties imposed in those cases, mindful of the limitations of comparable cases to operate as a yardstick, particularly in the work health and safety prosecution context: Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 at [28].
Penalty
SFS Management Pty Ltd was convicted of each offence pursuant to orders that I made on 3 September 2025.
The appropriate fine for the s 32 offence is $680,000, which will be reduced by 25% to reflect the plea of guilty and a further $30,000 to give effect to the principle of totality.
The appropriate fine for the s 46 offence is $70,000 which will be reduced by 25% to reflect the plea of guilty and a further $32,500 to give effect to the principle of totality.
Accordingly, the total of the fines imposed upon SFS Management is $500,000.
In Industrial Court proceedings 2024/391261 (s 32 Summons), I make the following orders:
(1)I impose a fine of $480,000.
(2)SFS Management (Aust) Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
(3)Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
In Industrial Court proceedings 2024/391282 (s 46 Summons), I make the following orders:
(1)I impose a fine of $20,000.
(2)SFS Management (Aust) Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
(3)Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
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