SafeWork NSW v Tiger Electrical Solutions Pty Ltd

[2025] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Tiger Electrical Solutions Pty Ltd [2025] NSWDC 300

Hearing dates:

26 June 2025

Date of orders:

8 August 2025

Decision date:

08 August 2025

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   Tiger Electrical Solutions Pty Ltd is convicted.

(2)   The appropriate fine is $400,000 and that will be reduced by 25% due to the early plea.

(3)   Accordingly, Tiger Electrical Solutions Pty Ltd is to pay a fine of $300,000.

(4)   The prosecutor is to receive a moiety of 50% of the fine.

(5)   Tiger Electrical Solutions Pty Ltd is to pay the prosecutor’s costs as agreed or assessed.

(6) Tiger Electrical Solutions Pty Ltd is to comply with a WHS Project Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) within eight months of these Orders, in accordance with Annexure A to this judgment.

Catchwords:

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

COSTS – prosecutor’s costs

Legislation Cited:

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

Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 238

Cases Cited:

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

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

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

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Tiger Electrical Solutions Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
S McIntosh (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Marsdens Law Group (Defendant)

File Number(s):

2024/49096

Publication restriction:

Nil

JUDGMENT

1. Tiger Electrical Solutions Pty Ltd (Tiger) has pleaded guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

2. Tiger operates a business of conducting electrical repairs and maintenance for government and commercial clients.

3. Tiger has entered pleas of guilty to breaching s 32 of the WHS Act by failing to comply with the primary duty under s 19(1) of the WHS Act. The offence is recorded in the Amended Summons filed on 12 March 2025.

4. The prosecutor tendered the Prosecution Sentence Tender Bundle (PSTB) which became exhibit 1, and three Victim Impact Statements of Michael East (exhibit 2), Nisa East (Ms East) (exhibit 3) and Rouella East Gabrielides (Ms Gabrielides) (exhibit 4).

5. The defendant tendered an affidavit of Adam Mason dated 20 June 2025 which became exhibit A and a Cirlock Bag which became exhibit B.

6. The facts are set out in a joint Agreed Statement of Facts (ASOF) and are supplemented by the material in the PSTB. The ASOF is summarised below.

Background

7. At all material times Tiger employed approximately 33 workers including:

1. Jason Stennett (Mr Stennett), Operations Manager.

2. Lauchlan Walford (Mr Walford), Electrician/Technician.

3. Ben Laws (Mr Laws), Electrician/Technician.

4. Zeon East (Mr East), fourth-year apprentice.

8. Mr East commenced employment with Tiger on 22 March 2021. Prior to the incident, Tiger estimated that 70% of Mr East’s work involved warranty work on ceiling fans. As a fourth-year apprentice, Mr East was deemed by Tiger to be competent to work under broad supervision with minimum support, having been assessed as competent in a number of Units of Competency by TAFE NSW.

9. Tiger provided its electricians, including Mr East, with vans and associated equipment such as the Lock Out Tag Out (LOTO) kits, to undertake electrical work at various sites.

The Property

10. The charge arose from an incident on 11 February 2022 at a residential property at 48 Wymston Parade, Wareemba (the property). Tiger had been engaged by a building group to undertake remedial electrical work at the property following damage caused by a storm.

11. On 1 February 2022 Tiger assigned Mr Walford to undertake remedial works at the property to attempt to find and repair the fault causing power outage to the garage. Mr Walford disconnected the cable attached to the circuit marked “Garage” from the switchboard and placed a “VP” connector on the end of the cable. Mr Walford did not attach a tag to the circuit or switchboard.

12. Mr Walford identified that the fault was either from the feed cable or from the connection point in garage roof, but he ran out of time to find the fault. Mr Walford did not find the junction box in the garage roof space and could not see anything that indicated the presence of another feed into the garage. Mr Walford did not confirm whether his observations were correct.

13. On 4 February 2022 Mr East was assigned to attend the site to continue fault-finding. Mr East was required to identify the cable with the insulation resistance fault, repair the fault if possible, and if not possible to repair, provide a quote for additional rectification works.

14. The fault-finding was to be undertaken by separating the active and neutral cables within the junction box in the garage space, and confirming which cable had the insulation resistance fault using a “megger” insulation tester. Once the fault had been identified, the junction box was to be put back together with the faulty cable disconnected. This was an appropriate method by which to identify and repair the fault providing steps were taken to safeguard against the risk of electric shock or electrocution in the roof space.

15. Mr East conducted the fault-finding with the assistance of Mr Stennett over the phone. The faulty cable from the switchboard to garage was identified and the location of the junction box in the roof space. This work was undertaken in proximity to the switchboard and during this work Mr East was not exposed to the risk pleaded in the Amended Summons.

The Incident

16. On 11 February 2022, Mr East attended the property to undertake the corrective action identified from his previous fault-finding, which entailed running a new cable to supply power to the garage. Once Mr East had run the new cable, he was required to enter the garage roof space, confirm which cable had the resistance fault and disconnect the faulty cable from the junction box.

17. At 11.20am on 11 February 2022, Mr Stennett called Mr East. During the telephone conversation, Mr East advised that he had run the cable to the garage and was getting ready to connect it. In his Record of Interview with SafeWork NSW, Mr Stennett said he mentioned to Mr East that there was a pool pump on the same mixed circuit and that that would be the best place to go as all of the cables joined together. Mr Stennett advised Mr East to go to the isolator for the pool pump as the access point to put the circuit back on. Mr Stennett said he recommended to Mr East that the pool pump was the most suitable location to join the new cable. Mr Stennett said irrespective of where the connection was made Mr East would have needed to access the roof space to confirm the old connection had been disconnected.

18. During the phone call Mr East told Mr Stennett that the homeowner had advised that a storm on the previous night (10 February 2022) had caused the outside lights on the garage to flicker. These lights are depicted in the photo at PSTB tab 8, p 13. Mr Stennett and Mr East could not determine an explanation for the flickering of the lights and did not undertake further investigations. Tiger (through Mr Stennett) was aware that Mr Walford had disconnected the cable feeding the garage and believed there was no source of power which would cause the lights to flicker.

19. Rather than connecting the cable to the pool pump as per the recommendation of Mr Stennett, Mr East ran the new cable into the eaves of the garage to connect it to the junction box in the roof space.

20. Mr East accessed the roof space via a manhole and crawled into the south-western corner to the junction box. In his position, Mr East’s stomach was resting on a 35mm exposed copper pipe. Mr East connected the new cable/feed to the junction box and shortly afterwards, Mr East suffered a fatal electrocution injury.

21. Mr East’s body was identified to have electrical burn injuries on various parts of his hands and fingers. Extensive burn injuries were also identified across Mr East’s stomach, where he had been laying across the copper pipe.

Risk

22. The defendant failed to comply with its duty by failing to manage a risk identified in par 10 of the Amended Summons as follows:

“The risk was the risk of workers, in particular Mr East, suffering serious injury or death as a result of electric shock or electrocution from energised cables, copper pipes and/or other conductive materials whilst undertaking work in a roof space of a residential property.”

23. The defendant further failed to comply with its duty by failing to take the reasonably practicable control measures set out in par 11 of the Amended Summons.

24. As a result of the defendant’s failure to comply with its health and safety duty, workers, in particular Mr East, were exposed to a risk of serious injury or death.

Health and Safety Duty

25. The defendant had a duty under s 19(1) of the WHS Act to ensure the health and safety of its workers. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them. The duty requires businesses to search for, detect and eliminate, so far as is reasonably practicable, any risks to safety.

26. The risk is identified in par 10 of the Amended Summons and this is a risk that is very well known in the industry and one of significant gravity. The possibility of danger was present once a person entered the roof space when the electricity had not been turned off and isolated.

27. The control measures are admitted by the defendant to have been “reasonably practicable” and were readily available and of no real cost.

Relevant Guidance Materials and Statutory Obligations

28. The relevant guidance materials are set out at pars 37 to 42 of the Agreed Statement of Facts (ASOF).

Systems of Work Prior to the Incident

29. From 1 March 2019 Tiger subscribed to the National Electrical Communication Association’s (NECA) Safety GEN system which gave it access to a library of safety templates to assist with safety management, including Work Health & Safety (WHS) Operational Procedures, Policy Statements, and a template SWMS.

30. The WHS Operational Procedures included MO-016 Isolation, Lock Out and Tag Out, which set out minimum system requirements for isolation of electrical equipment from other electrical sources. The isolation procedures provided:

1. Always test prior to touching (this is mandatory). The circuitry labelling MAY BE WRONG, do not take the chance.

2. The electrical equipment applicable to this procedure must be isolated from supplied by either opening switches, switching off circuit breakers (rack out if possible) or removing fuses. Following isolation, the circuit isolating device shall be secured in the open position and locked out where possible. Alternatively, isolation may consist of disconnection and removal of the cabling from a control device. Where the system of isolation is adopted all active and neutral conductors forming the circuit must be removed. The isolating device must then have a tag attached in accordance with this procedure.

31. The template SWMS included SWMS E113 Isolation. The Isolation SWMS set out the required lockout procedure including isolating the equipment from the main switchboard, securing the isolation by such means as lock-out to prevent inadvertent re­energisation and attaching a danger tag, and prove that the exposed conductors are deenergised (ie test for dead).

32. Prior to the incident, the Isolation SWMS did not specify that prior to entering ceilings, all electricity in the property was to be turned off at the switchboard and isolated at the main switch or meter box using the LOTO method of isolation.

33. Prior to the incident Tiger selected 7 of the 23 SWMS provided by NECA to be available to its workers via a shared Google Drive. SWMS C107 Ceiling, Subfloor & Other Restricted Space Work (SWMS C107), which had been provided by NECA to Tiger, was not provided to workers prior to the incident or made available via the shared Google Drive.

34. SWMS C107 covered establishing rescue procedures, making safe entry and how to exit/finish job. In respect of the hazard of coming into to contact with live electricity in a ceiling space, SWMS C107 outlined the following controls:

1. Before entering the restricted space, turn the electricity off. Once all electricity has been turned off, complete a pre-work risk assessment of the restricted space by looking around the space to identify hazards that may pose risks. These may include hazards identified as including location of electrical wiring and water or gas piping.

2. If hazards are assessed and deemed low-risk or not evident, ensure someone is aware of where you are and contact with them is maintained until work is complete.

3. If hazards are assessed and deemed medium to high risk, ensure a standby person is present at the worksite.

4. Identify method of communication with entrant/s whilst entry takes place.

5. Establish method of entrant retrieval to be employed in the event of an emergency.

6. Isolate any energy source (example: power in roof or subfloor) by turning off main switch, solar, battery and generating equipment and locking out.

35. Prior to the incident, Tiger did not implement a policy or procedure that specified that prior to entering a roof space to conduct electrical work the mains switch was required to be turned off and isolated.

36. Prior to the incident, Tiger did not require workers to notify other workers, or off-site supervisors and/or administrative staff of their intention to enter a roof space to undertake work.

37. Tiger had developed a “Take 5” personal risk assessment form for workers to use on site. The form was available to workers on the SimPro app and required workers to tick though various items prior to commencing work. The Take 5 personal risk assessment form was amended in September 2021 following an internal audit of safety documentation which identified that over 80% of Take 5 personal risk assessment forms were completed incorrectly regarding isolation requirements. As at 11 February 2022, the Take 5 personal risk assessment form included an item as follows:

“I understand that any energy isolations need to be locked out and tagged out (LOTO) before any works commence on circuit. Note: all required isolations to follow procedure MO-016 and photo evidence of lockout installed to be uploaded to job in SimPro.”

38. Prior to the incident, Tiger did not adequately monitor completion of the Take 5 personal risk assessment forms by workers. The completion of the Take 5 personal risk assessment forms by workers were only checked by Tiger’s administration at the closure of each job, including whether photographs had been uploaded to confirm the correct isolation procedure had been adopted. On 1 February 2022, Mr Walford did not upload any photographs of the circuit he had isolated to confirm the isolation. Whilst Mr East completed a Take 5 personal risk assessment form on 4 February 2022, he did upload a photograph of the isolation. Mr East did not complete a Take 5 personal risk assessment form on 11 February 2022.

39. Prior to the incident Tiger did not have a policy setting out the level of supervision required for apprentices. Mr East was permitted to work under broad off-site supervision and he was not provided with direct on-site supervision for more complex fault-finding or in respect of confirmation of isolation. Prior to the incident around 70% of Mr East’s work was warranty work for ceiling fans which did not require him to enter roof spaces.

Systems of Work After the Incident

40. Following the incident, Tiger implemented a procedure whereby no worker was permitted to work within a roof space unless the mains switch was turned off and the service fuses isolated.

41. Staff were advised during toolbox talks that if working alone in a roof cavity, isolation of all possible electricity to the property was required by pulling the main fuse or isolating the main switch. Further, if working alone, workers were required to advise the office of the estimated duration of time required in the roof space.

42. Tiger revised the Isolation SWMS to incorporate the requirement to isolate all power before entering a residential roof space. The revised Isolation SWMS provides the following controls for roof space access of a residential property:

1. Isolation of all electricity/circuits in the property to be completed before entering roof space.

2. If isolation to entire property not possible, escalate to supervisor for direction before proceeding with works.

3. Ensure other workers on site are notified of entry to roof space. If no workers are on site, notify administration staff.

43. Tiger also implemented SWMS C107, which set out the steps for managing the risk of electrocution or electric shock when working in a roof space.

44. Tiger provided instruction and training to its workers in the revised procedures for working in roof cavities via toolbox talks. On 15 February 2022 all electrical workers received a toolbox talk retraining in Tiger’s HSEQ framework, retraining on processes around roof space access, including the revisions to SWMS E100 (Isolation), demonstration of isolation procedures, and use of LOTO.

45. Tiger implemented a policy that where electrical isolation is required or where there is a risk of exposure to live parts, fourth-year apprentices are not permitted to undertake these works without a licensed tradesman present and supervising the work on site.

46. After the incident Tiger also developed and implemented an apprentice supervision policy, MP-016 Apprentice Supervision Policy. The Apprentice Supervision Policy set out the types of supervision required for apprentices for different types of work. In respect of fourth-year apprentices, the Apprentice Supervision Policy provided that “direct” supervision was required for advanced fault-finding tasks and confirmation of isolation.

47. Tiger increased the frequency of reviewing its Take 5 paperwork as a remote monitoring process, with the reviews now being daily for ongoing jobs. Remote monitoring consists of checks to pre-start paperwork, before and after photos, and LOTO photos, where required.

Injuries

48. Mr East died as a consequence of the injuries sustained in the incident. I send my deepest condolences to his friends and family for their tragic loss, from which I have no doubt that they will never recover. The only punishment that I can apply to the defendant is a fine and the imposition of a Project Order. This may seem inadequate to Mr East’s family and friends, but I do not have the power to order anything other than a fine and a Project Order which is what I will do.

Victim Impact Statements

49. Mr East’s father, Michael East, made a Victim Impact Statement on 18 June 2025 about the devastating loss and the pain that he has suffered as a consequence of losing his son. He details the discussions that he had with Zeon about becoming an electrician and continues to struggle with unanswered questions as to how his son’s death occurred. He states that this uncertainty has made it even harder for the family to find closure. He further states:

“Not a day goes by that I don’t think of him, and the circumstances he died under, My heart sinks and I need to suppress my need to cry or smash something, that’s is what I have to deal with.”

50. Mr East’s sister, Ms East, also made a Victim Impact Statement which she read to the court. It was devastating to see the torture and pain that Ms East is going through as a consequence of the loss of her beloved brother. She also is dealing not just with her own pain, but is trying to support her family and also Mr East’s fiancé, Tanya. Her statement is extraordinarily eloquent and incredibly moving. Mr East’s death has had a catastrophic effect on his sister.

51. Ms Gabrielides also made a Victim Impact Statement which she bravely read to the court. Ms Gabrielides was Mr East’s mother. She opened her statement by saying the following:

“Zeon was a caring, loving, easygoing young man. He was hardworking, he would go out of his way to help anybody that asked.

He is the centre of my life.”

52. Ms Gabrielides also detailed the devastating effect that Mr East’s death has had on her and her family.

53. It was very difficult to listen to the evidence and read the statements made by the family of Mr East but I feel incredibly fortunate that I have had the opportunity to hear their stories. Whilst I will never understand the depth of their grief, it was very brave of them to read statements about their grief, which is so raw, to a room full of strangers. It was my honour to hear what they said and I was particularly moved by the level of their suffering. I hope that as time passes, the grief and suffering of the family members may ease slightly and that they may at some stage be able to move forward and smile when they think about Mr East. I give them my deepest condolences.

Sentencing

54. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

55. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“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 v The Queen [2011] HCA 39; (2011) 244 CLR 120. 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.”

Objective Seriousness of the Offence

56. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…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 offending.”

57. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

58. The duties of the defendant require that they ensure the health and safety of workers so far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

59. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

60. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

61. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible:  Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

62. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

63. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [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 upon an assessment of all those factors.”

64. His Honour further observed at [42]:

“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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

65. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

66. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature:  R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

67. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence:  WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns J).

68. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize:  Nash v Silver City Drilling at [34].

2. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [34].

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:  Nash v Silver City Drilling at [34] and [53].

4. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

5. Whether the risk was an obvious or clear one.

6. The vulnerability of the workers exposed to the risk:  SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).

69. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of.  In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 mitigation steps could have been taken.”

Matters Relevant to Determining the Culpability of the Defendant

70. The risk was known, or ought to have been known by Tiger. Allowing workers to work in and around electrical equipment which is not isolated is deplorable. There was ample guidance material available drawing attention to electrical hazards in roof spaces, and the requirement to switch off all power and isolate or lock out.

71. This is a risk that is well-known to the community, not just those who perform such high-risk work, and it is a risk of significant gravity. The possibility of danger was present once a person entered the roof space when the electricity had not been turned off.

72. Moreover, the measures, that Tiger by its plea admitted to have been “reasonably practicable” to manage the risk are set out in par 11 of the Amended Summons. The control measures identified in pars 11(a) to (c) of the Amended Summons are elimination measures – turning off all electricity at the mains eliminates the risk.

73. The gravity of the risk was extreme.

74. The defendant submits that it did have in place a dynamic system that generally dealt with the variety of risks to which the workers might be exposed, and as such asserts that it did not have a cavalier or stagnant approach to safety. It submits that it was proactive in seeking, imperfectly, to protect its workers from being exposed at a risk. Whilst I accept that there were systems in place, they were woefully inadequate, and the level of supervision provided was particularly so.

75. I accept that the defendant’s plea reflects its unequivocal admission that the systems in place were not sufficient to ensure against the risk of electrocution.

76. I note that the defendant accepts that its failures were objectively serious, with which I agree.

77. However, the submission that is made by the defendant at par 38 of the defendant’s written submissions as follows, causes me some concern.

“However, Tiger’s intention was to attempt to strike a balance between providing workers with the necessary information to ensure safety, and to not overwhelm its workers with too much paperwork or information, with the risk that is [sic] would either be not read or ignored. Given the matters and risks covered by the safety system documents that were provided to its employees, the Court would accept Mr Mason’s evidence on this issue. Critically, Tiger’s decision was not informed by either a disregard for safety or to promote an alternate corporate interest, such as profit, over safety. Nor was it a decision that was made in the absence of any consideration as to safety. It was a decision, made in good faith, by an offender with generally proactive approach to safety issues.”

78. In my view, it is completely unacceptable for a defendant to try and rely on the fact that they did not want to “overburden” the employees with too much paperwork. There are very strict and strenuous measures which have been mandated in the WHS Act that oblige employers to hold their duty to keep workers safe whilst in the workplace for a very good reason. The work that was being performed here was extremely high-risk, and thus the obligation on employers is to ensure the safety of their workers, and shield them from risk. Clearly this defendant ignored that part of its duty.

Maximum Penalty

79. The maximum penalty for each of these offences at the relevant date is $1,782.579.25. The level of the fine in my view is evidence that the Parliament intended these offences to be taken very seriously.

Deterrence

80. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

81. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace:  Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

82. When examining matters of deterrence, both specific and general deterrence apply:  R v Miria [2009] NSWCCA 68.

83. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

84. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and in particular working with electricity, which the industry itself would acknowledge as hazardous.

85. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

86. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

87. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

Aggravating Factors

88. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

89. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

90. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

91. The affidavit of Adam Mason (exhibit A) tendered by the defendant, I accept, contains an expression of genuine remorse, and appropriately contains an apology. Mr Mason also accepts, as the director of the Tiger, that the defendant failed in its duty to comply with a safety duty under the WHS Act. In particular it failed in its duty to directly supervise Mr East.

92. The defendant has not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous conviction.

93. I accept that the defendant is a corporate citizen of good character: s 21A(3)(f) of the Sentencing Act.

94. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the installation tasks.

91. I accept that the defendant has demonstrated a commitment to workplace safety, and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

92. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

93. The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

94. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

Project Order

99. The prosecutor seeks a work health and safety project order pursuant to s 238 of the WHS Act. The form of the project order is attached to an affidavit of Natalie Martin dated 27 May 2025. I will make an order in accordance with s 238 of the WHS Act that the defendant complies with the order attached to the affidavit.

Penalty

100. I make the following orders:

1. Tiger Electrical Solutions Pty Ltd is convicted.

2. The appropriate fine is $400,000 and that will be reduced by 25% due to the early plea.

3. Accordingly, Tiger Electrical Solutions Pty Ltd is to pay a fine of $300,000.

4. The prosecutor is to receive a moiety of 50% of the fine.

5. Tiger Electrical Solutions Pty Ltd is to pay the prosecutor’s costs as agreed or assessed.

6. Tiger Electrical Solutions Pty Ltd is to comply with a WHS Project Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) within eight months of these Orders, in accordance with Annexure A to this judgment.

Annexure A - Project Order (26.4 KB, docx)

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Decision last updated: 08 August 2025