SafeWork NSW v Prime Metal Roofing Pty Ltd [2023] NSWDC 15

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Prime Metal Roofing Pty Ltd [2023] NSWDC 15 Hearing dates: 16 December 2022 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Prime Metal Roofing Pty Ltd was convicted on 16 December 2022. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Prime Metal Roofing Pty Ltd to pay a fine of $375,000. (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 Prime Metal 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 – duty cannot be delegated or transferred – more than one person can have a duty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement COSTS – prosecution costs OTHER – defendant conducted a business or undertaking that involved providing labour to metal roofing companies – worker suffered fatal injuries in the course of dismantling edge protection on roof – worker electrocuted following contact between energised powerlines and steel handrail he was holding – second worker suffered severe flash burns to legs – failure to verify site-specific risk assessment conducted – failure to verify power lines were de-energised prior to work – failure to verify adequate safe work method statement was provided, implemented and enforced – failure to prohibit workers dismantling edge protection in proximity to energise power lines Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Corporations Act 2001 (Cth), s 601AH Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 17, 19, 32 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 Pty Ltd [2022] NSWDC 261 SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electric Lines, 2014 WorkCover NSW, Code of Practice - Construction Work, July 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 Category: Sentence Parties: SafeWork NSW (Prosecutor) Prime Metal Roofing Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) Self-represented by directors Mr Holloway and Mr Marmont (Defendant)