SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75 Hearing dates: 22 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Evolve Roofing Pty Ltd is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 25% to $300,000 to reflect the early plea of guilty, and further reduced to $150,000 by reason of capacity to pay. (3) Order Evolve 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 Evolve 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 – specific deterrence – capacity to pay appropriate penalty SENTENCE – general deterrence – failure to take simple and effective precautions to stop falls – carnage in the roofing industry COSTS – prosecution costs OTHER – defendant engaged to replace roof – worker stepped backwards onto fragile skylight – fell nine metres to ground below 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, 19, 32 Work Health and Safety Regulation 2017 (NSW), reg 78 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 Landmark Roofing Pty Ltd [2020] NSWDC 202 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 Australia Information Sheet, Safe Work on Roofs, dated January 2016 SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, dated August 2019 SafeWork NSW Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, dated 2009 SafeWork NSW, Construction Falls from Heights Blitz Checklist Category: Sentence Parties: SafeWork NSW (Prosecutor) Evolve Roofing Pty Ltd (Defendant) Representation: Counsel: M Scott (Prosecutor) N Read (Defendant)