MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2025] ACTMC 19

INDUSTRIAL LAW - SENTENCING - judgment and punishment - Work Health and Safety - Category 2 offence - asbestos exposure

Work Health and Safety Regulation 2011 (ACT), ss 419, 453, 458

Crimes (Sentencing) Act 2005 (ACT), s 57

Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5

SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228

SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565

Comcare v Commonwealth of Australia [2007] FCA 662 SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175

SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580

WorkCover Authority (NSW) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700

Darter v Diden [2006] SASC 152

Mahdi Jahandideh v R [2014] NSWCCA 178

1. The Defendant, Mr Benjamin Hannaford, was a person conducting a business or undertaking (PCBU) which involved plumbing and general maintenance work. He traded under the business name 'RnB Plumbing'.
2. On 4 May 2022 an individual, Mr Khan, engaged Mr Hannaford to replace the roof on his garden shed. The work included the removal of material from the site after the roof had been replaced. The agreed price was $1,643 plus GST.
3. On 3 June 2022, Mr Hannaford attended Mr Khan's address with another man who assisted him ("Mr X"). Mr Hannaford removed and replaced the garden shed roof but he did not take the old roof sheets away. He left the sheets, which contained asbestos, on the ground beside the shed. Mr Hannaford was not a licensed asbestos removalist.
4. On 10 June 2022, Mr Khan asked Mr Hannaford why he had not removed the old roofing sheets. Mr Hannaford advised Mr Khan that the sheets contained asbestos and he was arranging for them to be double bagged and removed. He asked for an additional $270 to dispose of the old roofing sheets, which Mr Khan agreed to pay.
5. On 19 June 2022, Mr Hannaford attended Mr Khan's property with another man, Mr Church. Mr Church had agreed to Mr Hannaford using his box trailer to load the sheets, however Mr Hannaford did not tell Mr Church that the sheets contained asbestos. He told him that they were collecting an old fence.
6. Mr Hannaford loaded the trailer while Mr Church stayed in the car. Mr Church then drove Mr Hannaford to Mr Church's residence at the caravan park in which he and Mr Hannaford both lived. Mr Church's trailer, with the asbestos material, was left covered with a blue plastic tarp outside Mr Church's residence for over three weeks. On 14 July 2022, Mr Church drove his trailer to Mr Hannaford's residence and, with the assistance of Mr Hannaford's partner, transferred the roofing sheets to Mr Hannaford's trailer.
7. On 18 July 2022, two WorkSafe ACT Inspectors attended Mr Hannaford's residence after receiving a complaint. They observed that Mr Hannaford's trailer was uncovered and full of asbestos corrugated roof sheeting which had not been wrapped in accordance with the relevant Work Health and Safety Regulation 2011 (WHS Regulation) standards.
8. On 19 July 2022, WorkSafe ACT issued a notice to Mr Hannaford requiring him to engage a suitably qualified asbestos removalist to dispose of the materials within 48 hours. Mr Hannaford did not respond to the notice and WorkSafe ACT Inspectors attended his premises on 22 July 2022. They observed that Mr Hannaford had not complied with the notice. As a result, WorkSafe ACT engaged licensed asbestos removal companies to remove the material that day.

1. Under s 19(2) of the Work Health and Safety Act 2011 (WHS Act), Mr Hannaford had a duty to ensure that the health and safety of other persons was not put at risk from work carried out as part of the conduct of his business.
2. Under s 32 of the WHS Act, a person commits a Category 2 offence if:

(a) the person has a health and safety duty;

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

1. Mr Hannaford pleaded guilty to having committed a Category 2 offence as a result of his actions (the Principal Offence). Specifically, he accepted that he failed to take one or more of the following reasonably practicable measures to eliminate or minimise the risks to health and safety of workers of his business (namely, Mr X and Mr Church):

(a) engaging, or advisding Mr Khan that he needed to engage, a licensed asbestos removalist to remove the asbestos sheets;

(b) dealing with the asbestos, including its removal, transport and storage, in a way that complied with relevant provisions of the WHS Regulation - for example:

(i) ensuring that anyone engaged as a worker for his business had completed a recognised asbestos awareness course or training;

(ii) ensuring that anyone engaged as a worker for his business was aware that the old roofing sheets contained asbestos;

(iii) ensuring that his business had an asbestos control removal plan;

(iv) using water suppression and ensuring that anyone engaged as a worker for his business wore the recommended personal protective equipment;

(v) using the regulated asbestos disposal bags and/or ensuring that the asbestos was sealed in a double-lined, heavy duty polyethylene sheeting; and

(vi) ensuring that, during the transportation and subsequent storage of the old sheets, the box trailer was properly covered.

1. The Prosecution case is that these failings exposed Mr X and Mr Church to the risk of inhaling airborne asbestos fibres. Inhaling airborne asbestos fibres can damage lung tissue which, over time, may lead to lung disease including asbestosis, lung cancer and mesothelioma. Mr Hannaford did not challenge these propositions.
2. Mr Hannaford's failings also exposed Mr Khan, Mr Hannaford's partner and other people at the caravan park to the risk of inhaling airborne asbestos fibres. Mr Hannaford accepts that, as a result, he committed a further Category 2 offence (the Additional Offence) which I am to take into account in sentencing him for the Principal Offence (Crimes (Sentencing) Act 2005, s 57).
3. The maximum penalty for a Category 2 offence when committed by an individual as a PCBU, as Mr Hannaford was, was a fine of $300,000 at the time of Mr Hannaford's offence.

1. The objective seriousness of an offence against the WHS Act involving a failure to comply with a health and safety duty is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that workers were not exposed to risks to their safety (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228 at [30]). Considerations which are relevant to an assessment of the duty holder's culpability include (SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565 at [49]):

(a) the potential consequences of the risk (noting that the focus must be on the risk arising from the failure to take reasonably practicable steps to avoid injury, not the likelihood of injury resulting - conduct will be more serious, the more serious the potential injuries, whether or not they are likely to materialise - Nash v Silver City Drilling (NSW) NSWCCA 96 at [53]);

(b) the availability of steps to eliminate or minimise the risk;

(c) the ease with which mitigating steps could have been taken;

(d) whether the risk was an obvious or clear one;

(e) whether the risk was known, or ought reasonably to have been known to or identified by the offender (it is an aggravating factor if the risk was foreseeable even if the precise cause or circumstance of exposure to the risk were not foreseeable and it is a further aggravating factor if the risk was not only foreseeable but in fact foreseen by the offender - Comcare v Commonwealth of Australia [2007] FCA 662, Madgwick J noted at [120]); and

(f) the vulnerability of the workers exposed to the risk.

1. The culpability of an offender will turn on an evaluation of all the various factors, which may pull in different directions (Nash v Silver City Drilling (NSW) NSWCCA 96 at [42]). By way of example, the following scenarios have been considered in other cases:

(a) an offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86 at [69]);

(b) the culpability of an offender has been found to be reasonably high in circumstances where, while the relevant risk was not expected to occur often, the seriousness of the foreseeable resultant harm was extreme and the steps to be taken to avoid it were straightforward and involved only minor inconvenience and little cost (Nash v Silver City Drilling (NSW) NSWCCA 96); and

(c) the neglect of simple, well-known, precautions to deal with an evident and great risk of injury, take a matter towards the worst-case category (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]).

Assessment of objective seriousness of Mr Hannaford's conduct in relation to the Principal Offence

1. In my view, this is a serious example of a Category 2 WHS offence. Mr Hannaford was prohibited from carrying out, or directing or allowing a worker to carry out, work involving asbestos (s 419(1), WHS Regulations). That prohibition extended to work in relation to the supply, transport, storage, removal, handling, disposing of or disturbing asbestos (s 419(2), WHS Regulations).
2. While Mr Hannaford may not have known that the old roof sheets contained asbestos when he agreed to replace Mr Khan's roof on his garden shed, he was required to ensure that all asbestos that was likely to be disturbed by the refurbishment was identified and removed by a licensed asbestos removalist before the refurbishment commenced (ss 453(1), 458(1) WHS Regulations). There were also mitigatory steps that Mr Hannaford could have taken to protect himself and Mr X in the event that the sheets did contain asbestos, such as wearing appropriate personal protective equipment and clothing and using water suppression techniques, which he did not take.
3. Given Mr Hannaford's advice to Mr Khan on 10 June 2022 that the old roof sheets contained asbestos, it is clear that Mr Hannaford realised, at some point during the removal of those sheets from the garden shed, that they contained asbestos. This view is consistent with Mr Hannaford's statement to the author of the Court Duty Report that he was informed by a neighbour of Mr Khan that the sheets contained asbestos when he placed them into a pile in Mr Khan's backyard.
4. Despite this, he did not engage a licensed asbestos removalist. Nor did he take any other mitigatory steps, such as using the regulated asbestos disposal bags or sealing the asbestos in a double-lined, heavy duty polyethylene sheeting.
5. Mr Hannaford told the author of the Court Duty Report that the additional amount he had asked Mr Khan to pay was the sum that another tradesman had quoted to remove the sheets before realising that they contained asbestos. He said that he 'freaked out a bit' and removed the sheets himself rather than obtaining further quotes.
6. In submissions, Mr Hannaford said that he did make further enquiries, which revealed that the cost of engaging a licensed asbestos removalist (around $2,500) was much higher than the sum he had quoted Mr Khan ($270), and that he could not afford the difference. He conceded that he ignored the issue rather than asking Mr Khan for additional funds.
7. Whether he made the additional enquiries before or after he removed the roof sheets from Mr Khan's property, I accept the Prosecution submission that the issue was easily remediable. Mr Khan had agreed to pay an additional amount for the safe removal of the asbestos sheets and Mr Hannaford simply needed to obtain a quote from a licensed asbestos removalist and ask Mr Khan to pay the cost. It is unlikely that Mr Khan would have refused.
8. Mr Hannaford's eschewal of his responsibilities continued with his engagement of Mr Church, who was not a licensed asbestos removalist. Worse still, he deliberately sought to deceive Mr Church by telling him that they were only going to collect an old fence when he knew that the roof sheets contained asbestos.
9. As noted earlier in these reasons, the risk to which Mr Hannaford exposed Mr X and Mr Church, as a result of the breach of his duty, was the risk of them inhaling airborne asbestos fibres. Generally speaking, the risk of inhaling airborne asbestos fibres from disturbed asbestos, and the significant health risks posed by exposure to asbestos (as also outlined earlier in these reasons), are notorious.
10. It is not clear how likely it was that Mr X or Mr Church might inhale airborne asbestos fibres from roof sheeting that was mainly stored in a stationary position outside, nor how likely it is that Mr X or Mr Church might develop any of the illnesses which, in a general sense, may be caused by the inhalation of airborne asbestos fibres, from the exposure to the roof sheeting that they had. Nevertheless, Mr Hannaford accepts that he knew that he had exposed Mr X and Mr Church to the risk of inhaling asbestos fibres and, therefore, that he exposed them to a significant risk of harm (by which I understood that he was referring to the risk of developing one of the serious health consequences that inhalation of asbestos fibres may result in).
11. It is clear from Mr Hannaford's message to Mr Khan of 10 June 2025 that Mr Hannaford was aware that exposure to asbestos poses health risks, given his advice that he needed to take protective steps (double bagging the roof sheets) before removing the sheets from Mr Khan's property. He knew that Mr X had been exposed to the asbestos to some extent on the day the old roof sheets were replaced and he knew that Mr Church could be exposed to the asbestos for an extended period given that Mr Church took the sheets back to his residence for storage (which ended up being from 19 June to 14 July 2022).
12. There were mitigatory measures which were available and feasible, as identified earlier in these reasons, that Mr Hannaford could have taken to eliminate or reduce the risk of Mr X or Mr Church inhaling airborne asbestos fibres. They were not onerous, burdensome or costly.
13. Ultimately, Mr Hannaford did not take any steps to deal with the asbestos in a way that complied with the WHS Regulation. He only covered the sheets with a tarp once Mr Church removed them to his residence.

Assessment of objective seriousness of Mr Hannaford's conduct in relation to the Additional Offence

1. For the same reasons as I have set out above in relation to the Principal Offence, I consider that the Additional Offence is also a serious example of a Category 2 WHS offence. Mr Hannaford accepts that he exposed Mr Khan, Mr Hannaford's partner and other residents of the carpark where he lived to the risk of inhaling airborne asbestos fibres and that he failed to take any appropriate available and feasible steps to eliminate or reduce the risk.
2. While Mr Hannaford focused in submissions on the three day period when the roof sheets were at his residence, after he had received notice that his storage of the roof sheets was not compliant with his regulatory obligations, I find that he was aware that he was non-compliant, and risked exposing the victims of the Additional Offence, from the time when he removed the old roof sheets from Mr Khan's garden shed. The notice he received from WorkSafe Act only confirmed what Mr Hannaford already knew.
3. In particular, while Mr Hannaford submitted that he believed he had double bagged the sheets in compliance with his regulatory obligations, that submission is not consistent with the agreed facts. He told Mr Khan that the roof sheets needed to be double bagged, but the facts record that he only covered them with a tarp once Mr Church removed them to his residence.

1. Mr Hannaford is 47 years of age. He has strong support from his parents and from his partner, with whom he lives in a Housing ACT property. He has had previous periods of problematic alcohol and drug use, however he does not currently use illicit drugs and does not consider that his use of alcohol is problematic.
2. While Mr Hannaford has generally held employment throughout his adult life, he has not worked since early 2024 as a result of suffering health complications following a motorcycle accident. He has been in receipt of Centrelink benefits for the past 18 months and is only just able to afford his weekly living expenses. He would have difficulty paying a fine at this stage.
3. Fortunately, Mr Hannaford's health is now improving and he is looking for employment. He is able to undertake community service work.

1. Mr Hannaford has a number of entries on his criminal history, however the majority of his convictions are for driving offences. He has no history of committing Work Health and Safety offences.
2. Mr Hannaford is entitled to some leniency in relation to the present offence. The absence of any like offences suggests that the present offence is an aberration that is not likely to be repeated. This lessens the significance of specific deterrence as a sentencing consideration in this matter, although it remains relevant as discussed below.

1. Mr Hannaford submits that he is entitled to the full discount for his plea of guilty. Although he did not enter a plea of not guilty, and the matter was never listed for hearing, his plea came more than 18 months after the commencement of proceedings and the utility of his plea is reduced on account of that delay. I will allow a discount of 20%.

1. The Prosecution identified one case in which an individual who was a PCBU was sentenced for a Category 2 offence involving asbestos exposure. The Prosecution provided a summary of the outcome of that case from the Queensland Office of the Work Health and Safety Prosecutor.
2. The defendant in that case attended a residential home to clean the roof using a high pressure water device. The roof was constructed in the 1960s and contained asbestos. Despite the fact that the age of the house gave rise to an obvious risk of asbestos being present in the roof, and despite there being several simple control measures to minimise or remove the risk of asbestos exposure, the defendant took no appropriate protective measures. The defendant also failed to comply with three compliance notes which directed that the asbestos-contaminated dust (ACD) be removed by a licensed asbestos removalist.
3. Inspectors found ACD in greater than minor quantities on cars, plants, the ground and the house exterior and fence. Traces of ACD were also found at an adjacent residential property. Accordingly, it was clear that the defendant's conduct exposed his co-worker and several other individuals carrying out unrelated work inside the house to the risk of inhaling ACD and, therefore, to a risk of serious illness.
4. The Court considered that the overall criminality of the offending warranted a fine of $34,000 but moderated the penalty having regard to the defendant's subjective circumstances. The Court imposed a court-ordered work health and safety undertaking with a good behaviour order for a period of two years and a recognisance of $25,000 for the Category 2 offences and a fine of $9,000 for the non-compliance with the improvement notices. The Court took into account the defendant's early guilty plea, lack of relevant criminal history and the fact that the defendant was reliant on social welfare payments to support himself and his children.

1. General and specific deterrence are particularly relevant factors in light of the objects and terms of the WHS Act (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]). As the Court in SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105 said at [30]:

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 obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

1. Specific deterrence is also relevant given that the defendant continues to operate his business (SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105 at [31]).
2. There is a need to make Mr Hannaford accountable and also to denounce his conduct, particularly the way in which he misled Mr Church. I also recognise the harm caused to the victims of Mr Hannaford's conduct. While it is difficult to identify the extent to which each of the victims of the Principal and Additional Offences were exposed to the risk of inhaling airborne asbestos fibres, it is accepted that they were exposed to that risk, and to the risk of developing serious health conditions as a result. At a minimum, the victims are likely to have experienced some anxiety about that risk materialising.

1. The primary considerations to which I must have regard in determining an appropriate sentence are the objective seriousness of the offending conduct and the importance of the sentence reflecting the need for general and specific deterrence (SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175 at [33]; SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580; C_omcare v Commonwealth of Australia_ [2007] FCA 662, at [120]). Mr Hannaford's offending conduct (with respect to both the Principal and Additional Offences) was serious and general deterrence is the dominant sentencing purpose.
2. Subjective factors play a subsidiary role and should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence (WorkCover Authority (NSW) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 at [31]). Mr Hannaford's strained financial circumstances are relevant to the sentence which should be imposed but they are not determinative (Darter v Diden [2006] SASC 152, quoted with approval in Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]).
3. It is appropriate to impose a significant punishment on Mr Hannaford to achieve the relevant purposes of sentencing. Given his strained financial circumstances, it is impractical to impose a significant fine and I have therefore determined to impose a comparatively modest fine (compared to the maximum penalty) of $8,000, reduced from $10,000 for Mr Hannaford's plea of guilty, together with the imposition of a good behaviour order requiring Mr Hannaford to complete a substantial number of community service work hours.

(a) On the charge of committing a category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011, the Defendant is convicted.

(b) The Defendant is required to pay a fine of $8,000 within the next 12 months.

(c) The Defendant is to enter into a Good Behaviour Order for a period of 24 months. He is required to sign an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for that period with the following additional conditions:

(i) The Defendant will be on probation, subject to the supervision of the Director-General of Corrective Services (or delegate) and must obey all reasonable directions of that person during the period of the Good Behaviour Order, or such lesser period as determined to be appropriate by the supervising officer.

(ii) The Defendant is to report to the Corrective Services Court Duty officer immediately.

(iii) The Defendant is to perform community service work for a period of 100 hours within 24 months from the date of this order.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.