District Court New South Wales Medium Neutral Citation: SafeWork NSW v PV Solar Pro Pty Ltd [2021] NSWDC 258 Hearing dates: 7 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 PV Solar Pro Pty Ltd is convicted. 2 I impose a fine of $300,000. 3 The offender is to pay the prosecutor's costs of the proceedings agreed at $70,000. 4 I order, pursuant to s 122(2) Fines Act 1996, that 50% of the fine is to be paid to the prosecutor. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – fall from height – death of employee SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274 Hili v The Queen (2010) 253 CLR 58 Jahandideh v R [2014] NSWCCA 178 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: SafeWork NSW (Prosecutor) PV Solar Pro Pty Ltd (Defendant) Representation: Counsel: B Docking (Prosecutor) T Epstein (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Clyde & Co (Defendant) File Number(s): 2020/241887 Publication restriction: None Judgment 1. PV Solar Pro Pty Ltd (PV Solar) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Jaryd Hayter, Nicholas Mills and Nicholas Pollock to a risk of death or serious injury. 2. The maximum penalty for this offence is a fine of $1.5 million. Facts 1. The parties tendered an Agreed Statement of Facts that can be summarised as follows. Background 1. PV Solar, as Trustee of Elite Solar Pro, operated a business installing solar panels in residential and commercial buildings. PV Solar was a technical specialist installer that employed Clean Energy Council accredited installers and designers of solar panels. 2. Mark Wheeler and Paul McCabe were the Managing Directors of PV Solar. Mr McCabe was also listed as a project manager in Energy Australia's Commercial Installation WHS Management Plan. 3. The Elite Solar Pro Occupational Health and Safety Employee Handbook dated 7 January 2017 (the Handbook) provided that, as Managing Directors, Mr Wheeler and Mr McCabe were responsible for implementing the company's occupational health and safety (OHS) procedures and ensuring all staff are adequately trained in OHS management requirements. Workers 1. Jaryd Hayter was employed by PV Solar as a first year electrical apprentice. Mr Hayter was 19 years old. He commenced his trial with PV Solar on 14 August 2018, only one week prior to the incident. Mr Hayter had obtained his Work Health and Safety General Construction Induction Card on 23 March 2015 and a "Work at Heights" competency with a registered training organisation (RTO) which was issued on 13 August 2018. 2. Nicholas Mills was also employed by PV Solar as a first year electrical apprentice. He began his employment on 25 September 2017. His duties and responsibilities included working on roofs and preparing mounting brackets for solar panels. Mr Mills had completed working at heights training at TAFE in September 2017. 3. Nicholas Pollock was employed by PV Solar as a supervisor, electrician and solar panel installer. He had been working for the company since 2016 and reported directly to Mr Wheeler and Mr McCabe. Mr Pollock was trained in Elite Solar's SWMS for Photovoltaic Solar Power Installation (the SWMS). He had completed a "Working Safely at Height Training Course" in 2014. The Handbook provided that the site supervisor was responsible for supervising and ensuring compliance with safe work procedures and undertaking regular inspections of site and equipment. Mr Pollock was the direct supervisor to Mr Hayter and Mr Mills on the day of the incident. Wet & Dry Work Order 1. On 27 April 2018, EnergyAustralia Home Services (EnergyAustralia) entered into a service contract with Wet & Dry Coatings Pty Ltd (Wet & Dry) to install solar panels on two adjacent warehouses at their site located at 24 Punt Road, Tomago (the site). 2. EnergyAustralia engaged PV Solar to install the solar panels at the site. PV Solar was contractually obliged to conduct all site visits necessary to properly and safely complete the installation. 3. On 11 and 18 May 2018, PV Solar conducted two inspections of the site. Mr Pollock, Mr Kenny, and another PV Solar employee, conducted a visual inspection, took measurements, drew sketches and took photographs of the electrical infrastructure, roof access and layout, and site hazards to plan for the design configuration and installation of the solar panels. 4. Following the inspections, Mr Pollock completed a risk assessment for the site. 5. On 23 May 2018, PV Solar returned to EnergyAustralia its completed Commercial Inspection Form and materials gathered at the site inspection on 11 May 2018. Mr Pollock completed the Commercial Inspection Form which included a photograph from above of the two warehouses at the site, depicting skylights installed on the roof of each building. Mr Pollock identified that harnesses were to be used as fall protection during the installation, but did not identify the skylights as a hazard. 6. On 22 August 2018, EnergyAustralia issued a work order to PV Solar to install a 35KW solar system for Wet & Dry on the two warehouses at the site. The Incident 1. On 23 August 2018, Mr Pollock, Mr Mills and Mr Hayter arrived on site at approximately 7:30am. 2. Prior to commencing work, Mr Pollock conducted a Job Safety Analysis (JSA) during which he identified the hazards at the site. Mr Pollock advised both Mr Mills and Mr Hayter of the skylights on the roof and directed them to remain harnessed at all times. Cones were placed on the skylights to identify them as a hazard, to be avoided. 3. The main anchor points and ropes were set up on the roof prior to the commencement of work at the site. Mr Mills set up Mr Hayter's restraint system. 4. Mr Pollock conducted a visual check on all equipment before it was used and before work commenced. The purpose of the visual checks was to look for any damage to the ropes or harnesses, any cracks or rust in the anchor points and to check that the lanyard shock absorber system was engaged. PV Solar also encouraged its workers to do a visual check of their own ropes. 5. By approximately 11:00am, most of the mounting rail to lay the solar panels on had been fixed to the roof. Mr Mills descended from the roof via a ladder to take a lunch break. 6. Between 11:15am and 11:30am, Mr Hayter continued to measure and cut rail and fix them to the roof. Mr Pollock was installing electrical cables and working side on to Mr Hayter. Mr Pollock could not see Mr Hayter at the time and did not see or hear him fall. 7. Adrian Kirsch and Joseph Tabone, employees of Wet & Dry, were working inside the warehouse when they heard a thud on the ground. Mr Hayter was lying on the workshop floor with his safety harness attached to a rope hanging from the roof through the skylight. 8. Mr Hayter had fallen approximately 6.5 metres. When Mr Pollock attended to Mr Hayter he noticed that the rope grab appeared to be set too far down the length of the rope. Injuries 1. NSW Ambulance attended the site and Mr Hayter was taken to John Hunter Hospital. A CT scan was undertaken that showed multiple skull fractures indicative of a severe traumatic head injury. 2. Mr Hayter underwent neurosurgery and remained in a critical condition displaying no signs of recovery. His injuries proved fatal and life support was withdrawn on 5 September 2018. SafeWork Inspection 1. Following the incident, SafeWork conducted a site inspection and noted a skylight on the roof on the warehouse, situated approximately 4 metres from its east wall and around 16 metres from its northern wall, was shattered and broken through. 2. A blue and orange synthetic rope was extended from the shattered skylight. The rope's length ran from the damaged skylight towards the floor of the factory. 3. Approximately 550mm from the end of the rope was a galvanised steep rope grab. The rope grab was locked in position. Attached to the rope grab by a steel karabiner was a synthetic shock absorber pack. It was intact, not deployed and encased in a clear plastic sock. A Spanset fall arrest safety harness was found on the factory floor. 4. SafeWork NSW seized the roof safety access rope and attached hardware. NSW Police Inspection 1. NSW Police undertook an examination of the site and fall arrest system used. It was observed that the other three skylights on the roof had been marked by placing an orange witches hat in the centre of it. 2. The fall arrest system consisted of an anchor point that had been screwed into the roof near the ladder, just west of the roof centre ridge line that ran north to south. The device was a "Ling" brand HSTB500 Tether V-Bar straight 500mm temporary anchor point manufactured in 2017. 3. The remainder of the safety line hanging down into the work shed measured 6.2 metres, making the total length of the safety line from tether point to the end of the rope 14.7 metres. 4. NSW Police seized the harness. Guidance Material 1. There was ample objective guidance material available to PV Solar including: 1. Clauses 37, 78-80 and 299 of the Work Health and Safety Regulation 2017 (the Regulations); 2. WorkCover NSW "Safe Work on Roofs Part 1: Commercial and Industrial Buildings" dated 2009; 3. SafeWork NSW Government "Code of Practice Managing the Risks of Falls at Workplaces" dated April 2016; 4. SafeWork NSW Safety Alert "Falls Through Skylights and Plastic Roof Sheeting" dated 5 April 2018; 5. WorkSafe Victoria "Compliance Code Prevention of Falls in General Construction", Edition No. 1 dated September 2008; 6. SafeWork Australia "Safe Work on Roof Information Sheet" dated January 2016; 7. WorkSafe Victoria "Preventing Falls from Height in Building & Construction" Construction Safety Focus dated July 2016; 8. AS/NZS 1891.4:2009 Industrial Fall-Arrest Systems and Devices Part 4: Selection, Use and Maintenance; 9. "Tetha V Bar 500/280" manufacturer's instructions for the use of "Tether V-Bar Roof Anchor" (Tetha Instructions). 1. PV Solar were aware of the risks of falls from heights. PV Solar had specific policies and procedures that addressed the risks and measures available to minimise or eliminate those risks, including: 1. PV Solar Procedure – Working at Heights (WHS-ESP-001" issued January 2017; 2. the Handbook; 3. PV Solar "Record of Toolbox Meeting" dated 21 May 2018; 4. PV Solar EnergyAustralia SWMS; 5. EnergyAustralia WHS Management Plan. 1. Systems of Work at the Site 2. Fall restraint systems were used by PV Solar workers to install the solar panels on the roof, comprising of an anchor point, connecting device, rope and harness. Mr Hayter was wearing a harness and was connected via a lanyard to an anchor point on the roof. 3. The harness based fall arrest system that was set up for Mr Hayter was unsafe for performing the type of work being undertaken at the site for three main reasons. 4. First, the Tetha V-Bar roof anchorages were not installed in accordance with the manufacturer's instructions. The Tetha Instructions stated that the anchorage product required a minimum of three screws and that the karabiner should be installed with the locking down devise facing upwards. Photographs taken by NSW Police showed that the anchorage had been installed using two screws and that the karabiner had its gate facing downwards towards the roof sheet. 5. PV Solar allowed Mr Mills, who was a first year apprentice, to set up Mr Hayter's restraint system. Mr Mills did not have a copy of the Tetha Instructions and did not review the information prior to setting up Mr Hayter's harness. Mr Pollock had not checked Mr Hayter's harness setup nor provided specific instructions to Mr Hayter on the correct use of harnesses. 6. Second, there were inadequate temporary anchorage points set up on the roof. The Tetha Instructions stated that the anchorage devices should always be installed a minimum of 2 metres from an unprotected edge. Skylights are fragile and should be treated as an unprotected edge. There were only three anchorage points positioned on the roof and the location of the solar panels near the skylights made it impossible to position the anchorage points at a minimum of 2 metres away. Even with an adjusted safety line, the system design could not prevent falls off the eastern edge of the roof or through the skylights. 7. Third, the rope was set too long with a greater length of free movement than would prevent Mr Hayter from falling to the ground in the event of a vertical fall. Photographs taken by NSW Police showed that the manufacturer's label on Mr Hayter's fall arrest device allowed a maximum free fall of 2 metres. Taking into account Mr Hayter's height and the width of the skylight, the minimum possible free fall distance from the skylight was 2.7 metres. Reducing the free fall distance to 2.7 metres required a completely taut safety line and the worker to be standing exactly at the far edge of the skylight. Neither of these conditions were practical. The minimum possible free fall distance at the skylight of 2.7 metres would still exceed the maximum 2 metres allowed by the manufacturer of the fall arrest device. 8. The SWMS on site at the time of the incident was for a work location at a different address. PV Solar did not have a site specific SWMS at the time of the incident that specified the location of the skylights and where the solar panels were to be installed. 9. Witches hats were placed on or near the skylights as visual indicators. PV Solar did not position temporary skylight covers such as plywood or expanded metal sheets over the skylights to protect workers from the risk of falling through them. 10. The roof of the warehouse did not have safety mesh. When questioned, Mr Pollock stated that he was not aware that there was no safety mesh on the roof and that this was the first time that he had worked on a roof with no mesh. 11. Systems of Work Following the Incident 12. SafeWork NSW issued the following Notices to PV Solar: 1. Improvement Notice 7-337441 – to review and revise control measures regarding procedures used to prevent risks of fall from height; 2. Prohibition Notice 37419 – to cease the installation of solar panels on roof at the site. 1. Following the incident, PV Solar complied with the Notices by conducting an internal review and engaging a Work Health and Safety Consultant to assist in the revision of its control measures in addressing the risk of fall from height. The following measures were undertaken as part of the review: 1. implementation of a "buddy" system for working at heights wherein a second competent person is onsite to inspect the working at heights safety equipment selected to ensure it is correct; 2. implementation of an internal competency assessment for supervisors for personnel working at heights, in a question and answer format; 3. implemented internal supervisor training on work health and safety requirements and responsibilities; 4. reviewed the SWMS and its JSA forms to include all new controls such as the buddy system, placing plywood over fragile surfaces where possible and ensuring that mesh is installed underneath to minimise the risk of falling at height through a fragile surface; 5. reviewed and changed its Working at Heights Procedure and induction processes to capture all new changes outlined above; 6. updated the Handbook; 7. conducted and communicated the changes through toolbox talks and other documentation; and 8. all employees re-attended a Working Safely at Heights course with an RTO. Offender's Case on Sentence 1. The offender relied on three Affidavits sworn by Mr Wheeler on 12 May 2021, 26 May 2021 and 5 June 2021. Mr Wheeler participated in the proceedings by audio-visual link (AVL) and was cross-examined by the prosecutor. The content of Mr Wheeler's affidavits can be summarised as follows. I will not repeat matters I have already referred to. 2. Mr Wheeler began working in the solar industry in 2008 when he set up a company, MW Elite Services Pty Ltd, which traded as "Select Energy Electrical". He was the sole director of Select Energy Electrical until 2015. 3. PV Solar was established on 16 November 2015 and Mr Wheeler was appointed as director. Mr McCabe is the only other director of PV Solar. Mr Wheeler and Mr McCabe are located in Victoria and were unable to travel to Sydney for the purpose of the sentence hearing due to COVID-19 restrictions. 4. Mr Wheeler's involvement in the company is as a Managing Director of the business. He is responsible for the preparation of projects as well as the general management. He oversees the finances and day-to-day operations of PV Solar's business, including overseeing the work of engineers, invoicing for services provided and the general administrative aspects. 5. In addition to Mr Wheeler and Mr McCabe, PV Solar currently has 15 employees, with 11 employees in onsite roles and four employees in the office. 6. PV Solar previously had a warehouse in New South Wales but closed those premises in December 2019. Mr Pollock relocated from New South Wales during this time and continues to be employed by PV Solar. Part of the reason for the closure was because Mr Wheeler and Mr McCabe are based in Victoria and they wanted to provide more personal oversight of PV Solar's operations. 7. PV Solar is involved in a number of community engagements including regular donations to various charities. 8. Mr Wheeler, on behalf of the offender, deeply regrets the incident and expressed a sincere apology. He describes the incident involving Mr Hayter as having a significant impact on the offender and on him personally. 9. Mr Wheeler and Mr McCabe were not at the site on the date of the incident, however they both made arrangements to fly to Newcastle immediately and made regular visits to the hospital where Mr Hayter was being treated. 10. Following the incident, the offender provided access to mental health support to Mr Mills and Mr Pollock and extended this offer to other employees. 11. Mr Wheeler, on behalf of the offender, accepts responsibility for the incident involving Mr Hayter, Mr Mills and Mr Pollock. Mr Wheeler accepts that the systems in place on the day of the incident were inadequate. He deposed that the incident has had a direct impact on how the offender operates and that safety control measures have been consistently reviewed and improved each year. 2018 Improvements 1. Following the incident in August 2018 and as a commitment to further enhancing safety, the offender has placed a greater emphasis on purchasing safety equipment, upgrading processes, re-training employees, and thoroughly inducting and supervising new apprentices. 2. The offender updated its induction process for all new employees and apprentices. On the employee's first day, a number of topics are covered including the offender's WHS system, the fall restraint system, the offender's Working at Heights Procedure, the Handbook and the buddy system. New employees are shown the skylights at the offender's offices and it is demonstrated to the new employee how to identify skylights as well as the presence of safety mesh. 3. New apprentices engaged by the offender are only permitted to observe competent persons do a site-safety set-up and are not permitted to set up their own harness or another person's harness. Prior to the incident all employees and apprentices were required to hold an RTO working at heights competency, however after the incident the offender introduced an additional mandatory attendance at internal working at heights training conducted by one of PV Solar's supervisors. After the incident, employees were not permitted to work at heights without having successfully completed the internal competency assessment and attaining 'Work Safely at Heights' re-certification. 4. As part of the internal competency assessment, the offender also required each of its supervisors to complete an additional competency assessment that was targeted to their role and responsibility as a supervisor on site. The offender's assessment required its supervisors to demonstrate that they understand how working at heights control measures operate as well as to demonstrate their ability to work without supervision and to oversee the work of entry level workers. 5. The offender conducts regular onsite formal and informal safety inspections of its worksites approximately once a month. Mr McCabe is frequently onsite to supervise workers. 6. The offender updated the Handbook to detail additional requirements relating to fall protection, working around skylights, working at heights, the buddy system and changes to the induction process. 7. The SWMS was updated to capture the new buddy system and the treatment of skylights and fragile surfaces as an exposed edge. It is a requirement that each SWMS is site-specific and correctly filled out prior to commencing work at a new site. 8. The offender's JSA forms were updated to ensure that all workers: 1. satisfy themselves of the absence of roof hazards; 2. hold a Working at Heights certification; 3. are competent in the fall restraint system; and 4. are aware of the building height to be able to correctly set up rope lengths and harnesses. 2019 Improvements 1. The offender continued to regularly hold Toolbox Talks to communicate to its workers the new requirements of PV Solar's WHS system, including the requirement to complete a site-specific JSA and SWMS. 2. In November 2019, the offender facilitated Mr Pollock to complete the "Supervising Your Apprentice or Trainee" professional development workshop delivered by Vocational Education and Training. 2020 Improvements 1. In 2020, the offender invested in fall prevention equipment by purchasing a guardrail system in the amount of $36,113 and trained its employees to install the guardrail system safely. Prior to this, the offender would engage third parties to supply and install guardrails on its sites. A further $3,338 was used to purchase sixty "Security Grilles" which are used to cover skylights. 2. The offender has continued to improve its safety measures onsite and changed its processes as follows: 1. prior to commencing work, the onsite supervisor must send photographs to a WhatsApp group consisting of Mr Wheeler, Mr McCabe and an engineer, Mr Xavier (the Project Managers). The photographs must clearly display the site safety set-up, which may consist of guardrails and the harness set up. The supervisor must also send photographs of the correctly completed site specific JSA and SWMS; 2. the Project Managers then thoroughly review the photographs and the completed JSA and SWMS to assess whether there are adequate safety measures in place. If there are any issues with a supervisor's onsite safety set-up, feedback is immediately provided to the onsite supervisor by way of telephone. Work cannot be commenced until a Project Manager authorises that it is safe to do so. 1. In October 2020, the Project Managers attended a training course "Work Safely at Heights" delivered by an RTO and received a unit of competency. 2021 Improvements 1. In or around February 2021, the offender introduced further changes to its SWMS ensuring that each contained more site-specific information including aerial view photographs of the site for the purpose of capturing designated walkways or the use of exclusion zones and guardrails. The JSA requires workers to include the site layout and the name of the supervisor who inspected the site safety set-up. The offender requires this information to be sent to the WhatsApp group prior to commencement of work. 2. Additionally, PV Solar created a new Site Inspection Checklist that combined the JSA and Site Inspection Checklist to ensure that it was completed daily and at each site inspection. This was done to ensure that site specific hazards are identified at the site inspection phase of a job to best prepare for the commencement of incident-free work. 3. The offender made a further investment in its guardrail system in the amount of $1,144. 4. In or around 7 May 2021, the offender engaged Matthew Guy to carry out a review of its safety systems. Mr Guy is a WHS Consultant and is currently undertaking a review of PV Solar's WHS systems against ISO45001 – Occupational Health and Safety Management Standard. 5. Additionally, the offender is participating in the Victorian Government's Solar Homes Program and arranged for its field workers to complete the training program "Working Safely in the Solar Industry". Six employees of the offender successfully completed the course on 29 April 2021. The remaining workers, including Mr Wheeler and Mr McCabe, are due to attend the course on 25 June 2021. Cross-examination of Mr Wheeler 1. Mr Wheeler was cross-examined by counsel for the prosecutor on his three affidavits. Mr Wheeler impressed me as a witness of truth who was doing his best to answer the questions put to him and I accept his written and oral evidence except for the matter set out in [79] below. A large number of questions were put to him about the accounts of the company, many of which he did not have sufficient understanding of the relevant accounting practices to answer. 2. In cross-examination Mr Wheeler maintained his acceptance of responsibility for the incident, offering "no excuse" for the failings of the company. 3. Mr Wheeler's evidence was that the company had very little work lined up and that its current jobs would last for two to three weeks. The May 2021 shutdown in Victoria closed the business in the week of the sentence hearing and the offender's workers were asked to take annual leave. He described the current state of the business as "living from day-to-day". 4. I do not accept Mr Wheeler's evidence that he is not in a position to loan the company money, based on his evidence about his personal financial position. However, I do not consider that to be relevant to the company's capacity to pay a fine because Mr Wheeler is not the offender: Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274 at [36] (Pain J). Consideration 1. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The offence is one of considerable objective gravity. 2. The pleaded risk to a worker falling from height was actually known to the offender. It is the most well-known and documented risk in the solar industry. 3. The likelihood of the risk occurring was moderate. 4. The potential consequences of the risk included a risk of death. 5. The steps that could have been taken by PV Solar were simple and well-known to it and in the industry. Prior to the incident, the offender had used plywood and pallets to cover skylights to prevent workers falling through them. The covers could be obtained at little or no cost to the offender. PV Solar had implemented a fall arrest system, however that system was unsafe and inadequate as it was not properly set up and inadequate supervision was provided to ensure that it was effective in ensuring the safety of the workers. 6. The offender did have safety systems in place and required workers to have undertaken a Working at Heights course before being employed. Unknown to the offender, the Working at Heights course attended by Mr Hayter had some material deficiencies. 7. The extent of the harm caused was significant. The death of Mr Hayter is a significant aggravating feature of the offence. 8. I have taken into account the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. The penalty imposed must also provide for specific deterrence. The offender continues to operate a business that exposes its workers to the risk of falling from height. However, the offender has sought to modify the work that it takes on to eliminate the risk posed to its workers. It has also significantly improved its safety systems relating to working at heights. Aggravating Factors 1. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the 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]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Hayter is sufficient to establish the aggravating factor. I have also had regard to the devastating impact that the offence has had on Mr Hayter's family. Mitigating Factors 1. The offender does not have any record of previous convictions s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. PV Solar was established on 16 November 2015. 2. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The extensive steps taken by PV Solar demonstrate that it has good prospects of rehabilitation. I am satisfied on the evidence that those steps have made PV Solar's activities significantly safer. 3. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Wheeler, on behalf of PV Solar, has accepted responsibility for the failings that led to the incident and has expressed genuine contrition and remorse. 4. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. 5. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. Comparable Cases on Penalty 1. I was referred to comparable cases by both parties. I have had regard to those bearing in mind the limitations inherent in doing so: Hili v The Queen (2010) 253 CLR 58 at [18]. Capacity to Pay a Fine 1. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. Mr Wheeler's evidence contained a significant amount of material as to the financial position of the company. As I understood that evidence, it was intended to identify the relative size of its operation and the impact of COVID-19 on it. 3. I am satisfied, based on the evidence, that the offender is a small to moderate sized operation. In the past four years, its financial position can be summarised in the following table. Financial Year Turnover Profit (Loss) 2018 $2,098,452 $63,122 2019 $2,151,083 $21,402 2020 $3,995,371 $334,145 2021 (to 31 March 2021) $2,183,876 ($66,263) 1. It should be noted that since about December 2019 the offender operates its business from Notting Hill in Victoria. Mr Wheeler's evidence was that the impact of the multiple lockdowns in Victoria has significantly impacted the work that was able to be undertaken in 2020 and is on the books to be undertaken in the future. I accept Mr Wheeler's evidence on this point, which is corroborated by the financial accounts. I am satisfied that the business has suffered as a result of the impact of COVID-19 and that this should be taken into account in assessing the appropriate penalty. 2. The offender presently has approximately $500,000 in its bank account. Mr Wheeler's evidence was that the directors have taken limited drawings from the business while it was in its formative years and that after the incident the money was left in the company for the purpose of meeting any fine and costs ordered against it in these proceedings. Mr Wheeler's evidence was that the company probably needs about $80,000 available to it at any one time for working capital. 3. Taking into account comparable cases and all of the circumstances of the case, my view is that the appropriate fine and the quantum of the prosecutor's costs will be met within the funds in the company's bank account. Accordingly, I have not reduced the appropriate fine because the offender has a limited capacity to pay. If I am wrong on that assessment, then I would find that the company has a capacity to pay a fine and the prosecutor's costs in the sum of no more than $500,000. Penalty 1. PV Solar Pro Pty Ltd is convicted. 2. I have taken into account the Victim Impact Statement prepared by Mr Hayter's family in determining the appropriate penalty to be imposed on the basis that the impact of his death on his family is an aspect of harm done to the community. The VIS was read in Court by Mr Hayter's mother. It was thoughtfully prepared and conveyed the love and esteem in which Mr Hayter was held as well as the pain and loss that each of his family members have suffered. 3. The appropriate fine is one of $400,000 that will be reduced by 25% to give effect to the plea of guilty. 4. I impose a fine of $300,000. 5. The offender is to pay the prosecutor's costs of the proceedings agreed at $70,000. 6. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2021