SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261 Hearing dates: 5 July 2022 Date of orders: 14 July 2022 Decision date: 14 July 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Perry's Roofing Pty Ltd is convicted. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Perry's Roofing Pty Ltd to pay a fine of $450,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Perry's 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 – victim impact statements COSTS – prosecution costs OTHER – defendant engaged in residential and commercial roofing work including slate roofing and asbestos removal – workers engaged in dismantling edge protection while standing on roof – worker suffered fatal injuries after he was electrocuted – contact between energised power lines and steel hand rail worker was holding – second worker suffered severe flash burns to legs – failure to ensure site-specific risk assessment had been conducted – failure to ensure power lines were de-energised prior to roofing works being undertaken – failure to provide, implement and enforce adequate Safe Work Method Statement for roofing work Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32, 238 Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling SafeWork Australia, General Guide for Working in the Vicinity of Overhead and Underground Electric Lines, 2014 WorkCover NSW, Code of Practice - Safe Work on Roofs, Part 1: Commercial and Industrial Buildings, 2009 WorkCover NSW, Code of Practice - Work Near Overhead Power Lines, July 2006 WorkCover NSW, Code of Practice - Construction Work, July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Perry's Roofing Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) C Magee (Defendant)