Safework NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420

District Court New South Wales

Medium Neutral Citation: Safework NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420 Hearing dates: 31 July 2020 Date of orders: 7 August 2020 Decision date: 07 August 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Landmark Roofing Pty Ltd is convicted. (2) The Victim Impact Statements of Ms Maryann Bradley-Asser and Mr Dale Asser are taken into account. (3) Order Landmark Roofing Pty Ltd to pay a fine of $400,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order Landmark Roofing Pty Ltd to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay –appropriate penalty COSTS – prosecution costs OTHER – site supervisor and apprentice roofer replacing polycarbonate skylight in roof with metal sheets ̶ apprentice roofer put foot onto an old brittle polycarbonate skylight sheet and fell through the roof – worker died from injuries suffered in fall – neither worker had a fall arrest or restraint system in place at the time of the incident – both workers should have had their safety harnesses connected by a rope to the available static line Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 27, 28, 30A, 30B, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Safework NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202. Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) Landmark Roofing Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) P Barry (Defendant)