District Court New South Wales Medium Neutral Citation: SafeWork NSW v Prime Metal Roofing Pty Ltd (No. 2) [2023] NSWDC 16 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 is convicted. (2) The appropriate fine is $160,000 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 $120,000. (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 COSTS – prosecution costs OTHER – defendant conducted business providing labour to metal roofing companies – workers removing asbestos roofing sheeting from building – timber purlins broke under the weight of the stacks of roof sheets – two workers fell through roof and wire safety mesh to concrete ground – third worker was able to hold onto roof sheet to avoiding falling – failure to verify structural inspection of the roof undertaken by qualified person – failure to prohibit work until structural inspection undertaken – failure to obtain and enforce safe work procedure or safe work method statement Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Corporations Act 2001 (Cth), s 601AH Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 17, 19, 32 Work Health and Safety Regulation 2017 (NSW), 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 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 (No. 2) [2022] NSWDC 262 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: 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) Prime Metal Roofing Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) Self-represented by directors Mr Holloway and Mr Marmont (Defendant) Solicitors: Department of Customer Service (Prosecutor) File Number(s): 2021/33282 Judgment 1. Prime Metal Roofing Pty Ltd (Prime Metal) was engaged to provide labour to assist in the removal and replacement of a building's roof. On 28 February 2019 workers were removing asbestos roof sheeting from the roof and placing them in stacks. A number of timber purlins broke under the weight of stacks of the roof sheets. Two workers fell through the roof and wire safety mesh onto the concrete ground four metres below. A third worker on the roof was also injured. 2. Prime Metal has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Daniel Te Riini, Mr Derick McKenzie and Mr Warren Irving to a risk of death or serious injury contrary to s 32 of the Act. 3. The maximum penalty for the offence is a fine of $1,500,000. Work Health and Safety Duties Cannot be Delegated 1. Section 19(1) of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers. 2. Section 17 of the Act provides as follows: "17 Management of risks A duty imposed on a person to ensure health and safety requires the person-- (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable." 1. Section 14 of the Act provides as follows: "14 Duties not transferrable A duty cannot be transferred to another person." 1. Section 16 of the Act provides: "16 More than one person can have a duty (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity." 1. It is plain from those provisions that a PCBU cannot rely upon other PCBUs working on a project to ensure health and safety. Each PCBU on the project has an individual and non-delegable duty to ensure safety. In this case the fatal incident occurred only two months after the company was incorporated. Both Mr Holloway and Mr Marmont were young men with little or no commercial experience. While each had worked as a roofer, Prime Metal seems to have had no work health and safety system of its own. Rather, it relied upon the work health and safety system of Perry's Roofing Pty Ltd (Perry's Roofing). 2. When there are multiple trades working on a site, and several PCBUs are involved, safety should be enhanced rather than put at risk. This is because each PCBU has an individual duty to ensure safety. In this case, if even one of the PCBUs on site had carried out its obligations under the Act, then the incident would not have happened. 3. Prime Metal had a particular responsibility to the men on the roof, as they were employees of Prime Metal. Both the criminal law and the common law imposes a non-delegable duty upon employers in respect of employees. Mr Holloway and Mr Marmont were inexperienced in commercial matters, naïve and trusting. Prime Metal should have had its own safety systems and was obliged to take proactive steps to ensure the safety of its workers on the roof. It failed to do so. Corporate Status of Prime Metal 1. Prime Metal was incorporated and registered on 5 December 2018. 2. The incident which is the subject of these proceedings occurred on 28 February 2019. 3. The Summons in these proceedings was filed on 4 February 2021. 4. The prosecutor and the defendant appeared before the court on directions hearings on 11 occasions prior to 29 April 2022, when leave was granted to the prosecutor to file in court an Amended Summons and an Agreed Statement of Facts and a plea of guilty was entered. The matter was set down for a sentence hearing before me on 21 July 2022. 5. On 15 July 2022 the parties again appeared before the court. The defendant company was represented by counsel. The following orders were made: 1. Note that the defendant was deregistered on 21 August 2021 and that any steps taken in these proceedings since deregistration are a nullity. 2. Vacate the sentence hearing on 21 July 2022. 3. Grant liberty to the prosecutor to approach my Associate by email to relist the matter before me. 1. The parties appeared again before me on 31 October 2022. The defendant was represented by Mr Holloway, a director. By that date ASIC had reinstated the company to the register. The matter was then listed for a sentence hearing before me on 16 December 2022. 2. Prime Metal was reinstated to the register by ASIC pursuant to s 601AH of the Corporations Act 2001 (Cth). 3. At the sentence hearing before me on 16 December 2022 Prime Metal was self-represented. Mr Holloway and Mr Marmont, the two directors of Prime Metal, were granted leave to appear for the company and represent it on the hearing. Both directors confirmed that Prime Metal entered a plea of guilty to the Amended Summons which had been filed in court on 29 April 2022. The Risk 1. The risk described in par 13 of the Amended Summons is as follows: "3. The risk was the risk of workers, in particular Mr Te Riini, Mr McKenzie and Mr Irving, suffering serious injury or death as a result of falling approximately 4 metres through the roof of the front building at the site." Reasonably Practicable Measures 1. Paragraph 14 of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Te Riini, Mr McKenzie and Mr Irving, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a) verify that Advanced or Perry's engaged an appropriately qualified person to undertake a structural inspection of the roof, which included an assessment of the: i. roof sheeting on the roof; ii. wire safety mesh; iii. timber purlins supporting the roof; iv. structural integrity of the roof; v. load bearing capacity of the roof; and/or b) prohibit workers from commencing the task of removing the roof sheeting until a structural inspection of the roof had been undertaken; and/or; c) obtain and enforce a safe work procedure or safe work method statement for the task of removing the roof sheeting which: i. identified the risk of the roof collapsing due to excessive point loading; ii. specified that a structural inspection of the roof must be undertaken prior to commencing the task." Background 1. The parties presented an Agreed Statement of Facts and this material is summarised below. Relevant Parties 1. Advanced Buildings (NSW) Pty Limited (Advanced Buildings) conducted a business or undertaking specialising in insurance reinstatement works. Advanced Buildings was retained by an insurer to undertake roof reinstatement repairs at a site in Moorebank (the site). The estimated cost of the works was $567,845. 2. Advanced Buildings engaged Perry's Roofing to undertake the roofing work at the site. Perry's Roofing conducted a business or undertaking involving residential and commercial roofing work, including asbestos removal. Mr Grant Perry was the sole director of Perry's Roofing. Perry's Roofing employed eight workers. 3. Perry's Roofing engaged Prime Metal to provide labour to assist in undertaking the task of the removal and replacement of the roof at the site. Prime Metal conducted a business or undertaking involving roofing works and providing labour hire to metal roofing companies. Mr Kieren Holloway and Mr Michael Marmont were the directors of Prime Metal. It has not traded since the incident. 4. HiVis Boys Pty Ltd (HiVis Boys) conducted a business or undertaking as a labour hire company. HiVis Boys provided workers to roofing companies. Ms Cassandra Perry was the director of HiVis Boys. Ms Perry is the sister of Mr Perry. HiVis Boys and Perry's Roofing operated as an integrated business from the same premises. Workers 1. Mr Craig Walshaw was the site supervisor for Advanced Buildings. 2. Prime Metal engaged four subcontractors to assist with works on the site, namely Mr Derick McKenzie, Mr Daniel Te Riini, Mr Warren Irving and Mr Daniel McKee. Mr Holloway also assisted with the roofing works at the site. 3. Perry's Roofing engaged Mr William McAskill as a site supervisor for Perry's Roofing. Mr McAskill was employed by HiVis Boys. Mr McAskill was responsible for supervising Perry's Roofing and Prime Metal workers at the site at the time of the incident. Mr McAskill had over 35 years' experience in the roofing industry but no formal qualifications. 4. Two employees of Perry's Roofing were on site at the time of the incident, including Mr Daniel Thomas, an 18-year-old first year apprentice. The Site 1. The site contained two industrial buildings. The buildings were known as "the front building" and "the rear building". The roofs on the buildings had corrugated asbestos cement sheet roof cladding that was damaged by a hailstorm that occurred in December 2018. The roofs needed to be replaced in order for the buildings to be reoccupied. 2. Advanced Buildings was the principal contractor at the site and was in control of the site. 3. Pursuant to the Scope of Works for the roof reinstatement repairs, Advanced Buildings was required to remove the asbestos cement roof sheeting on the buildings and replace them with Colorbond metal roof sheeting. 4. The front building was approximately 70 metres long and 23 metres wide. It had Colorbond walls and corrugated asbestos roof sheets. 5. There was steel safety mesh installed underneath the roof sheets in the front building. 6. The front building had a gable roof. Its highest point was 6.5 metres and its lowest point was 3.8 metres. 7. The front building had three areas (Areas 1, 2 and 3). The roof structure in Areas 1 and 2 were constructed of steel beams and timber purlins. The steel beams were 4.5 metres apart. The purlins were 1.23 metres apart. The roof structure of Area 3 was constructed of steel beams and steel purlins. 8. A purlin is a horizontal structural roof member, which is connected to larger rafters or beams. 9. The timber purlins were in poor condition. There were cracks and signs of splitting in a number of the purlins. The Work Being Performed 1. The work being performed at the time of the incident was the removal of asbestos roof sheeting from the roof in Area 1 of the front building. 2. The workers were not using an individual fall arrest system whilst they were stripping the roof sheeting as there were no suitable and available anchorage points on the roof. 3. There was edge protection on the left-hand side of the front building. There was also steel mesh under the roof which was being removed by the workers. 4. In order to perform the task of removing the asbestos roof sheeting, workers first placed timbers across the steel joists of the roof and placed plastic sheeting down across the timbers. 5. The workers, at the direction and under the supervision of Mr McAskill, then took the screws out of the roof sheets and placed the sheets in a stack on the plastic sheeting. The workers stacked between 10 and 25 roof sheets in each pile. 6. Once the workers had completed a pile, the stack of sheets was wrapped in the plastic and a crane lifted the stacks from the roof to the ground. 7. On the day of the incident, stacks of sheets had been removed from the roof using this method. The Incident 1. At 6.30am on 28 February 2019 roofing work commenced at the site. The roofing workers stripped two stacks of roofing sheets from the roof. These two stacks weighed between 500kg and 600kg. 2. At 8.50am on 28 February 2019 Mr Te Riini and Mr McKenzie were placing sheets onto a third stack on the roof. 3. A number of the timber purlins below the third stack of sheets broke under the weight of the stack. 4. Mr Te Riini and Mr McKenzie fell through the roof and the wire safety mesh onto the concrete floor approximately four metres below. 5. One roof sheet fell onto Mr McKenzie's head and the rest of the stack landed next to him. There were approximately 20 or 21 roof sheets in the stack. 6. Mr Irving was in the immediate vicinity of the section of the roof that collapsed. He began to fall through the roof but was able to hold onto a roof sheet and pull himself back up. 7. Mr Thomas was standing on a purlin cutting the wire safety mesh when the roof collapsed. He fell and got his ankle caught between a roller door and the wall. Mr Thomas pulled himself back onto the roof. He then heard the roof crack and jumped off the roof. Injuries to Workers 1. Mr McKenzie suffered numbness to both shoulders and his left upper arm, cuts to the head requiring stitches, a knee injury, lacerations and rib bruising. He was admitted to Liverpool Hospital and discharged after two nights on 2 March 2019. 2. Mr Te Riini sustained grazes and bruises to his head, abrasions over his right hip, right arm and left forearm, a laceration over his right knee with leg swelling and soreness to his shoulder. He was admitted to Liverpool Hospital and discharged after one night on 1 March 2019. 3. Mr Thomas sustained swelling and bruising to his left knee. 4. Mr Irving suffered scrapes and bruising. Inspection of the Site Following the Incident 1. At 11.00am on 28 February 2019 Inspector Jamie Hinton of SafeWork NSW attended the site and undertook an inspection. Inspector Hinton made the following observations: 1. Approximately 207 square metres of roof sheets and steel mesh had been removed from Area 1 of the front building. 2. A stack of approximately 20 roof sheets (the stack), dust and debris were located on the floor of Area 1. 3. The height from the roof to the floor below where the stack was located was approximately four metres. 4. A broken purlin was located above the stack and was hanging from the roof. 5. The safety mesh showed signs of rust and there was a split in the mesh where it came apart. 1. On 5 March 2019 Mr Frederick Birkl, a civil engineer of FWB Civil Engineering, attended the site to conduct an inspection of the roof structure and assess the structural adequacy of the remaining timber purlins. 2. Mr Birkl observed that approximately nine timber purlins had failed or were damaged due to the roof collapse. 3. Mr Birkl opined that any additional loads (of materials and workers) on the existing roof structure could lead to failure of the remaining timber purlins and recommended that no additional weight be placed on the roof during the removal of the remaining roof sheeting. He concluded that the remaining sheets had to be removed from the roof using mechanical means and were not to be stacked on the roof. Investigations Following the Incident Advanced Buildings 1. Advanced Buildings completed an Incident/Hazard/Near Miss Report and an Incident Investigation Report following the incident. 2. Advanced Buildings found that the roof collapsed due to the overloading of roof sheets. Advanced Buildings identified the following underlying causes: 1. Point overload of stacked roof sheets. 2. Incorrect stacking of roof sheets. 3. No support under stacked sheeting. The Weight of the Sheets 1. On 5 March 2019, during his site inspection, Mr Birkl observed that the roof sheets stacked on the ground measured 1.08m x 2.9m and weighed 15.6kg/m². 2. Based on these observations, Inspector Valdis Leinasars of SafeWork NSW calculated that the weight of the 20 sheets on the roof was 977kg. Guidance Material 1. Clause 78 of the Work Health and Safety Regulation 2017 (the Regulation) provided: "Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person." 1. Clause 79 of the Regulation provided: "Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. … (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by— (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable." 1. The WorkCover NSW Code of Practice Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 (Roofs Code of Practice) stated that before roof operations start, the principal contractor, in consultation with the contractors doing the work, must undertake an assessment of the risks involved in carrying out the work, and: 1. Ensure the roof structure is complete and braced. 2. Ensure the strength of the roof members is adequate to support the system to be used for controlling the risks of a fall injury. 3. Plan for positioning of bundles of roof material to avoid excessive point loading on the structure. 4. Identify the presence of any asbestos at the worksite or in the roof. 5. Ensure that all workers have received appropriate training and instruction. 6. Obtain Safe Work Method Statements (SWMSs) from the subcontractors, that adequately describe the work to be carried out. 1. The Roofs Code of Practice further provided that in addition to coordinating with the principal contractor, all contractors must: 1. Undertake an assessment of the risk involved in carrying out the work. 2. Provide a written SWMS, describing how the work is to be done safely. It should make an assessment of the risks involved in carrying out the work. 3. Plan to distribute materials and other equipment to be placed on the roof so that excessive point loading on the roof structure is avoided. 1. The Roofs Code of Practice also recommended that contractors should avoid storing old roofing material on the roof. Instead, they should transfer it from the point of removal to the ground. 2. The SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces dated April 2016 (Falls Code of Practice) stated that structures should be inspected to assess stability and, in some situations, advice may be needed from technical specialists, such as structural engineers, to check the stability of structures or load bearing capacity. 3. The Falls Code of Practice also stated: "Structural strength Different types of work involve different loads on the supporting surface. The surface and its supports must be able to safely carry the expected loads, including workers, materials, tools and equipment. When in doubt, have a structural engineer determine the safe load capacity before use." 1. The SafeWork NSW Code of Practice How to Safely Remove Asbestos dated September 2016 (Asbestos Code of Practice) stated that asbestos roof sheeting can become brittle with age, so any removal work on roofs should address the risk of fall hazards. It also stated that a system of removal that involves walking on the roof to remove roof sheeting should be a last option when choosing a method to remove roof sheeting. 2. The above Codes of Practice were readily accessible and available in the public domain prior to the incident. Inspection of the Roof Prior to the Incident 1. Prior to work commencing at the site, Advanced Buildings and Perry's Roofing conducted a visual, ground-based inspection of the front building. The structural integrity and load bearing capacity of the roof of the front building were not assessed during the inspection. The condition of the timber purlins was not considered during this inspection. 2. Ms Nicole Gallagher, Advanced Building's Safety Officer responsible for preparing the safety plan and risk assessment, attended the site but did not inspect the front building and did not know there were timber purlins in the relevant section. 3. Perry's Roofing conducted a further visual inspection of the front building before work commenced on the roof. Mr Perry considered that the timber purlins were in good condition and did not identify any cracks or breaks in the beams. He was satisfied that the timber purlins were fit to handle the stacking of asbestos sheeting on them. 4. No concerns were raised by Advanced Buildings or Perry's Roofing during either inspection regarding whether the roof would be able to support the stacking of roof sheets. 5. Neither Advanced Buildings nor Perry's Roofing engaged a structural engineer to assess the structural integrity or load bearing capability of the roof structure. 6. Enviropacific Services Pty Ltd (Enviropacific) conducted an inspection of the building prior to the incident for the purpose of providing Advanced Buildings with a quote for the removal of the roof sheeting. Enviropacific did not consider if the roof frames would support a stack of roof sheets. Enviopacific did not consider if the timber purlins in the roof were of sufficient strength to support a load of stacked roof sheets. 7. Enviropacific's quotation for the works at this site was not accepted by Advanced Buildings. Systems of Work Prior to the Incident 1. Mr Perry determined the system of work for the removal of the roof sheeting at the site. 2. Mr Perry instructed the workers to place no more than 25 sheets in a stack. 3. Prime Metal's system of work would not have had this many sheets placed on the roof. However, Prime Metal followed instructions from Perry's Roofing on how to perform the work. In particular, the instructions of Mr McAskill who was supervising the site. Safe Work Method Statements 1. Advanced Buildings had a Project Safety Management Plan for the site. The plan required contractors to supply Advanced Buildings with a written SWMS which explained how risks were to be controlled prior to the work activity commencing. Advanced Buildings' Work Health and Safety Plan provided that any SWMS would be assessed, monitored and reviewed by Advanced Buildings. This included the ability to issue "improvement notices" to contractors. 2. Perry's Roofing provided Advanced Buildings with a SWMS for "Metal Roofing". The SWMS identified the risk of falls from height in the job step of "strip roof" but did not prescribe any controls for the risk. 3. Perry's Roofing also provided Advanced Building with a SWMS for the "Replace Asbestos Roof with Colorbond". The SWMS did not identify the risk of falls from height, nor did it describe how the task of "strip[ping] asbestos super 6 sheeting" was to be carried out. 4. Neither SWMS identified the risk of the roof collapsing due to excessive point loading. 5. Advanced Buildings reviewed and approved the SWMSs. 6. Prime Metal operated under Perry's Roofing's SWMSs. Systems of Work Following the Incident 1. SafeWork NSW issued several notices following the incident, including Prohibition Notice No. 46518 to Advanced Buildings. The Prohibition Notice required Advanced Buildings to: 1. Cease all works immediately. 2. Ensure the risk of falls was eliminated or minimised by developing and implementing a safe system of work. 3. Ensure SWMSs were prepared and reviewed prior to carrying out any further roof works. 1. Perry's Roofing and Prime Metal ceased working at the site following the incident. 2. Advanced Buildings engaged Enviropacific to remove the remaining asbestos roof sheeting from the roof. Enviropacific removed the roof sheets by using a scissor lift below the roof. 3. Perry's Roofing engaged a work health and safety consultant to audit its safety systems and update its SWMS. In relation to the risk of falls from height when removing roof sheeting containing asbestos, the updated SWMS covers the potential hazard and risk of "Roof structure not adequate to support workers and/or roof sheeting that is being removed resulting in falls from height", and provides the following hazard and risk control measures: "Principal Contractor/Client to provide report on the stability of the roof structure including loading points for materials. Where required, back propping may be required, Principal Contractor/Client to install back propping prior to Perry's Roofing accessing the roof." Evidence for the Defendant Affidavit of Mr Kieran Joseph Holloway 1. Mr Kieran Holloway swore an affidavit on 22 November 2022 (DX 1). He is a director of Prime Metal. He was 28 years of age at the time of the incident. 2. Mr Holloway began his affidavit by conveying his sincere remorse and deep regret for the incident and the actions he should have taken but did not. 3. From the age of 14 years Mr Holloway pursued a career playing professional rugby league. He also worked as a garbage collector for URM in addition to playing rugby league. His high school friend Mr Michael Marmont already worked for URM and the two developed a strong bond. Mr Holloway met and became friends with Mr Joel White through Mr Marmont. 4. A shoulder injury put an end to his rugby career and his job at URM. Mr Holloway began coaching a local under 14s rugby league team at the Menai Colts club. 5. During his time at the Menai Colts club, Mr Holloway was offered a job as a roofer from his boss. He accepted this offer and worked for him for the next six years. With the help of his boss, Mr Holloway completed an apprenticeship in roof plumbing. 6. Mr Holloway told his boss that Mr Marmont was interested in getting a start in the roofing trade. Mr Marmont then began working with him. 7. After a few years Mr Marmont commenced working at Perry's Roofing. 8. Mr Holloway met Mr Perry through Mr Marmont. The style of roofing and type of work that Mr Perry did was very different to that which Mr Holloway did with his company. This led him to learn more about other aspects of his trade. 9. At the age of 21 years Mr Holloway was expecting his first daughter with his wife. He started to feel significant financial pressures and needed money to pay medical expenses. He began to work weekends and Christmas holidays with Perry's Roofing, which operated 7 days a week. 10. In 2018 Mr Marmont told Mr Holloway that Mr Perry needed subcontractors to help with his increased workload arising from the hailstorms that had occurred in Sydney that year. Mr Holloway's work friends were all burnt out from working 7-day weeks on a subpar wage and missing out on quality time with family and friends. It made sense to Mr Holloway to take this opportunity to start a business, now feeling ready after having spent several years in the roofing trade. 11. Mr Holloway discussed in his affidavit a separate workplace incident involving Prime Metal which occurred on 11 February 2019. This incident resulted in the death of a Prime Metal worker and friend, Mr Joel White. 12. About two weeks after the incident, following Mr White's funeral and a funeral for Mr Marmont's father, Mr Holloway and Mr Marmont informed their team that they were closing the business and considering not returning to roofing. However, Mr White's parents told them to continue their work because that is what Mr White would have wanted. 13. Mr Holloway did not think it was the right decision for him but decided to remain in the roofing trade. Roofing was all he knew and he didn't feel comfortable with a fresh start in another trade because he needed to make an income to look after his family. 14. Mr Holloway asked Mr Perry if he had a job for Prime Metal. However, Mr Holloway explained that he and Mr Marmont did not want to manage the job. 15. Prime Metal commenced working under Mr Perry's employee, Mr Billy McAskill, using Perry's Roofing SWMS and wearing Perry's Roofing's uniform, as was the case with all their other jobs. 16. Mr Holloway considered himself labour hire even when operating a business of his own. Things had not changed much when he and Mr Marmont started up the business in terms of how work was done. 17. Mr Holloway then stated that the incident occurred when the roof collapsed at the Moorebank site. 18. Prime Metal's staff came to work knowing what had to be done, to be extra cautious when undertaking even the smallest and simplest tasks and to always keep an eye out for each other. 19. Prime Metal were tasked with stripping the asbestos and re-sheeting the roof with metal roof sheets on an abandoned factory. It was the same as all other jobs Prime Metal had done for Perry's Roofing. The workers used the same system that Perry's Roofing and its foreman told them to comply with. 20. On Prime Metal's first day back at work, a timber purlin snapped creating a sink hole in the roof. Two of Prime Metal's employees and one of Perry's Roofing's apprentices fell through the roof. Remembering the earlier incident, Mr Holloway burst into tears and sprinted to render assistance and ensure they were not hurt. He stated that he assumed the worst and was extremely lucky the workers didn't sustain more serious injuries. 21. The incident occurred a day after Mr Holloway had a counsellor come and speak to the Prime Metal crew to offer help from the previous incident. 22. Mr Holloway immediately went to the hospital after he finished speaking to the SafeWork NSW officer who attended that day and spent the night with Mr Te Riini and Mr McKenzie. 23. Mr Holloway described the depression and stress he experienced. Amidst this his second daughter was born and he was again feeling financial pressures, exacerbated by the fact he now had one more child and had to pay a lawyer for both incidents. 24. Mr Holloway stated that if he knew that there was the slightest chance of anyone being placed at risk of even the smallest injury, he would not have worked on the site. He acted on the advice and instruction of Advanced Building's builder, Perry's Roofing, and the foreman who he trusted a second time. He considered they had everything under control for the job to run safely, especially following the workplace incident that had occurred only weeks earlier. 25. Mr Holloway accepted responsibility for what occurred on the day of the incident. 26. Mr Holloway stated that he has learned so much from both incidents. He acknowledged where he went wrong as a person and as a boss to Prime Metal's workers. 27. He has gone back to work earning a basic pay, is still paying off legal fees, living payday to payday to provide for his family. 28. Mr Holloway apologised to all of those who had been impacted by the incident and expressed remorse for Mr McKenzie and Mr Te Riini. 29. Mr Holloway further apologised that he had the power to stop this from happening but did not act upon it. Affidavit of Mr Michael Gregory Marmont 1. Mr Michael Marmont swore an affidavit on 6 December 2022 (DX 2). He is a director of Prime Metal. He was 29 years of age at the time of the incident. 2. Mr Marmont began his affidavit by stating his sincere regret and remorse for the incident. 3. Mr Marmont was introduced to construction work by his father who he worked alongside while still at school and then full-time once he completed his Year 12 Certificate. They worked on big projects, including the construction of the M7 Motorway and the upgrade of the Kingsgrove to Revesby rail lines. 4. At the age of 18 years, Mr Marmont wanted a new challenge and took up an opportunity with a childhood friend for a job in roofing. He quickly loved the work and met many liked-minded people who also enjoyed construction. 5. Mr Marmont started as a labourer and worked tirelessly over the years to learn the metal roofing trade, which became his passion and livelihood. 6. Mr Marmont started working at a company called Ace Roofing with his friend Mr Holloway. 7. After seven years Mr Marmont commenced working with Perry's Roofing under the owner, Mr Perry. 8. After a further three years Mr Marmont noticed many other roofing companies subcontract roofing work through Mr Perry's business. This led Mr Marmont to take the opportunity to do the same after 10 years of working in the trade. Ultimately, he and Mr Holloway made the decision to become business owners and subcontract to Perry's Roofing, with the ambition of one day owning a successful roofing business. 9. Mr Marmont discussed in his affidavit the separate workplace accident involving Prime Metal on 11 February 2019 which resulted in the death of Mr White. 10. Mr Marmont decided to continue roofing following a conversation with Mr White's father who assured him it was what Mr White would have wanted. However, he has not returned to managing jobs and no longer wanted the responsibility of overseeing anyone else. 11. Since the incident he has returned to his first boss at Ace Roofing over the past few years. 12. Mr Marmont apologised to Mr Derick McKenzie, Mr Warren Irving and Mr Daniel Te Riini. 13. Mr Marmont also gave his apologies to the Court, SafeWork NSW and the emergency services for having to deal with the details and trauma of the incidents. 14. Mr Marmont stated that it has also been tough financially. Prime Metal never blossomed. Mr Marmont and Mr Holloway lost not only the business but also their savings. 15. The incident has made him aware of safety around job sites. Now minor safety hazards stand out to him like life threatening hazards. Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Objective Seriousness of the Offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15]. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 1. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]. 2. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively. 3. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment. 4. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors." 1. Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs." 1. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken." 1. My findings about the defendant's level of culpability are based upon the following: 1. Prime Metal should have known of the risk. In any event the risk was foreseeable and there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was significant. Perry's Roofing, which gave the direction to the workers to stack 20 to 25 sheets in a pile, created a stack which weighed twice what it should have. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. 5. There was no great burden or inconvenience in these steps being implemented. 6. Three workers fell and were thus put at risk of serious injury or death. It was a miracle that no workers were killed or more seriously injured. 7. The maximum penalty for the offence is a fine of $1,500,000 which reflects the legislature's view of the seriousness of the offence. 8. Only 17 days earlier, Prime Metal breached its duties under the Act, resulting in the death of a young labourer and serious burns to another worker. The sentence hearing in that matter took place on the same day as the hearing in these proceedings. While that was a different site, with different workers, and a different risk, once again Prime Metal trusted Perry's Roofing to ensure the safety of workers and did nothing itself. 9. The Act specifically states that work health and safety duties cannot be delegated. A PCBU cannot, in effect, shrug its shoulders and say "someone else will look after safety". 10. The failures by Prime Metal are largely explained, but not excused, by the commercial inexperience and lack of business sophistication of Mr Holloway and Mr Marmont. 1. I find that the level of culpability of Prime Metal is in the mid range. 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. 2. The penalty must consider the need for specific deterrence. Prime Metal is no longer conducting a business. In these circumstances specific deterrence is not a factor. Aggravating Factors 1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mitigating Factors 1. Prime Metal has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injuries to the victims were caused by its actions. 2. Prime Metal entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Prime Metal a 25% discount for an early plea. 3. Prime Metal gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion. Parity 1. Perry's Roofing was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident. 2. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30]. 3. The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence." 1. The Court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. 2. It is appropriate for the court to consider the respective contributions of Perry's Roofing and Prime Metal. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241]. 3. I find that Prime Metal was less culpable than Perry's Roofing. I assessed the objective seriousness of the breach of duty by Perry's Roofing in the high range: SafeWork NSW v Perry's Roofing Pty Ltd (No. 2) [2022] NSWDC 262 at [109]. 4. Perry's Roofing was a larger, more experienced and more sophisticated organisation than Prime Metal. Perry's Roofing provided its own safety system, which Prime Metal naively assumed would have been adequate. Perry's Roofing provided the foreman who directed how Prime Metal was to carry out the job. By contrast, Prime Metal was essentially providing labour to work under the aegis of Perry's Roofing. Capacity to Pay a Fine 1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996." 1. The court was informed that Prime Metal is no longer trading. There was no submission about capacity to pay, so this issue does not arise. Costs 1. The prosecutor is entitled to an order that the defendant is to pay the prosecutor's costs. Penalty 1. My orders are: 1. Prime Metal Roofing Pty Ltd is convicted. 2. The appropriate fine is $160,000 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 $120,000. 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. ********** 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: 08 February 2023