SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407 Hearing dates: 1 September 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Advanced Roofing Sydney 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 Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000. (4) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor's costs as agreed or assessed. (6) Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023. (7) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011 (NSW). (8) The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023. (9) Liberty to apply, in the event of a failure to comply with these orders. 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 EVIDENCE – how not to prepare an affidavit – defendant filed two affidavits on the afternoon before sentence hearing, in breach of Practice Note 16 timetable – 393 pages of unpaginated material – adding insult to injury – dozens of documents with no relevance to the sentence hearing were annexed to the affidavits – late service cast burden upon court and prosecutor – court time wasted – no utility in annexing dozens of new safety policies which had no relevance on sentence – only a handful of annexed material was relevant– do not just annexe everything in sight OTHER – defendant conducted a business or undertaking that involved replacing metal roofing, walling and rainwater systems – two workers on roof carrying roof sheets – one worker stepped back and tripped on sandbag – worker fell through a black plastic sheet covering penetration – worker fell 8.42 metres to ground - failure to undertake adequate risk assessment – failure to have fall prevention device – failure to have Safe Work Method Statement that covered the hazard of penetrations – failure to provide information instruction and training that covered penetrations – failure to prohibit work on roof without adequate control measures for the hazard of penetrations Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238, 241 Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 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 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 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 Fact Sheet, Falls – Safety Guide Safe Work Australia, Safe Work on Roofs Information Sheet, January 2016 Category: Sentence Parties: SafeWork NSW (Prosecutor) Advanced Roofing Sydney Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) C Magee (Defendant)