SafeWork NSW v Perry's Roofing Pty Ltd [No. 2] [2022] NSWDC 262

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Perry's Roofing Pty Ltd [No. 2] [2022] NSWDC 262 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 $200,000 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 $150,000. (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 COSTS – prosecution costs OTHER – defendant engaged in residential and commercial roofing work including slate roofing and asbestos removal - workers removing asbestos roof sheeting – excessive point loading from stacked roof sheets caused timber purlins to break - part of the roof structure collapsed damaging the wire safety mesh – workers fell four metres onto concrete ground – failure to ensure structural inspection of roof – failure to prohibit workers from removing roof sheeting before structural inspection – failure to develop, implement and enforce an adequate safe work procedure or Safe Work Method Statement for the task of removing roof sheeting. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 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, cll 78, 79 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 SafeWork NSW v Perry's Roofing [2022] NSWLR 261 SafeWork NSW v Ru Dong Li [2018] NSWDC 189 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW, Code of Practice - Managing the Risk of Falls at Workplaces, April 2016 SafeWork NSW, Code of Practice - How to Safely Remove Asbestos, September 2016 WorkCover NSW, Code of Practice - Safe Work on Roofs, Part 1: Commercial and Industrial Buildings, 2009 Category: Sentence Parties: SafeWork NSW (Prosecutor) Perry's Roofing Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) C Magee (Defendant)