SafeWork NSW v 2 Types Constructions Pty Ltd

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
OTHER – fall from height – roofing work – fall through unprotected skylight – unauthorised access to roof – no measures to prevent unauthorised access to roof

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

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
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 - Construction Work, August 2019
SafeWork NSW, Code of Practice - Managing the risk of falls in the workplace, August 2019
SafeWork NSW, Safety Alert - Work Safely at heights in construction, 28 March 2022
SafeWork NSW, Safety Alert Fall through plastic skylight panel, 6 December 2019
SafeWork NSW, Safety Alert Falls through skylights and plastic roof sheeting safety alert, 6 July 2020

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
2 Types Constructions Pty Ltd (Defendant)

Representation: Counsel:
K Curry (Prosecutor)
M Baroni (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb (Defendant)

File Number(s): 2024/144764

Judgment

1. 2 Types Constructions Pty Ltd (2 Types) was engaged as the principal contractor to project manage the refurbishment of a school building which included upgrading the existing roof. MB Master Builders Pty Ltd (MB) was contracted to remove asbestos containing materials from the building. Mr Omar Malas (Mr Malas), who was employed by MB to perform truck driving and general labour services, accessed the roof. He fell approximately four metres through an unprotected skylight to the concrete floor below and suffered serious injuries.

2. 2 Types 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 WHS Act) it failed to comply with that duty and thereby exposed Mr Malas to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,782,579.

The Risk

4. The risk described in par 16 of Annexure A of the Amended Summons is as follows:

“The risk was the risk of workers, in particular Mr Malas, suffering serious injury or death as a result of falling from a height through skylights at the site.”

Reasonably Practicable Measures

5. Paragraph 17 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Malas, in that it failed to take one or more of the following reasonably practicable measures, to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

(a) Undertaking a risk assessment, or an adequate risk assessment, for the roofing works that identified the risk of a fall through a plastic or perspex skylight, assessed the risk and determined the most effective control measures to manage the risk;

(b) Install a temporary barrier at the top or bottom of the scaffold stairs, including signage to restrict unauthorised workers access to the roof;

(c) Implement or verify control measures in place to protect against the risk, such as:

i. Covering the skylights with material strong enough to prevent people falling through them, for example plywood boxes marked with warning signs; or

ii. Erecting a guardrail around the skylights;

(d) Developing, implementing and enforcing a Safe Work Method Statement (SWMS) for the work that identified the hazard of the skylight and described the measures to be implemented to manage the hazard (or alternatively, requiring its subcontractor MB to develop, implement and enforce a SWMS for the work that identified the hazard of the skylight and described the measures to be implemented to manage the hazard) such as:

i. Covering the skylights with material strong enough to prevent people falling through them, for example plywood boxes marked with warning signs; or

ii. Erecting a guardrail around the skylights;

(e) Require MB to complete WAH permits while carrying out work on the roof;

(f) Providing information, training and instruction to workers about working at heights and the hazard of the skylights and the measures implemented to guard against them.”

Background

6. The parties presented a Statement of Agreed Facts (PX 1, Tab 2) and this material is summarised below.

7. 2 Types operated a business involving construction work, specifically of school buildings and grounds.

8. Mr Shannon Andrews was Operations Director and Mr Luke Richardson was Managing Director of 2 Types.

The Workplace

9. 2 Types operated at a premises located at St Ursula’s College, Kingsgrove NSW (the Site). The Site was a “workplace” within the meaning of section 8 of the WHS Act.

10. Sydney Catholic Schools Limited engaged 2 Types in or around December 2021 as the principal contractor to project manage the refurbishment of a building at the Site. The minor works agreement set out the scope of works which included upgrading the existing roof, replacing roof sheeting, installing flashings for existing roof equipment and penetrations, and refurbishment of classrooms including new ceilings and carpets.

11. MB was contracted by 2 Types to remove asbestos containing materials from the building and carry out demolition work on the roof.

12. The scope of MB’s work also included the removal of skylights, ceilings, cabling, and roof sheeting. The removal of the roof sheeting was to be done in stages. The purchase order specified that a job-specific Safe Work Method Statement (SWMS) was to be provided prior to site commencement.

13. Mr Malas was employed by MB to perform truck driving and general labour services. His role was to drive a truck and remove rubbish from the Site every few days. Mr Malas is the uncle of Mr Mustafa Malas, the sole director of MB.

14. Mr Malas commenced employment at MB on 16 October 2021 and usually worked approximately 8 hours per week. He was 72 years old at the time of the offence.

15. The work to remove the roof sheets commenced on 5 April 2022.

16. On 19 April 2022 several sections of the building’s roof had been removed and timber sheets and tarps were placed over the roof area to prevent rain damage to the inside of the building.

The Incident

17. On 19 April 2022 Mr Malas was at the Site carrying out his work as an employee of MB.

18. Mr Malas used the existing scaffold to access the roof. Mr Malas does not recall why he was on the roof, but it is understood from witnesses that he was looking for lost keys.

19. Mr Mustafa Malas had previously instructed Mr Malas not to access the roof. Mr Malas knew and agreed that he was prohibited from accessing and entering the roof.

20. There were three skylights on the roof, each measuring 1150mm x 1150mm and made from 3mm plastic material. On the day of the Incident, none of the skylights were covered or barricaded and there was no safety mesh under the roof.

21. While on the roof, Mr Malas fell approximately four metres through an unprotected skylight to the concrete floor below.

Injuries

22. Mr Malas was treated on Site and transported by ambulance to hospital. He was put into an induced coma with a fractured eye socket, broken wrists, and a broken nose.

System of Work

23. There were no covers over the skylights to prevent falls through them, or safety mesh under the roof cladding. There were no measures in place to prevent unauthorised access to the roof when work was not being conducted.

24. 2 Types had a safety management plan (the Plan) in place for the Site. The Plan contained measures to manage construction hazards. It stated that falls from heights (Part 9.6) were to be managed as follows:

25. all work to be completed on the ground or a solid work surface, such as an elevated work platform;

26. but if not reasonably practicable, provide fall prevention devices, such as secure fencing and edge protection;

27. but if not reasonably practicable, provide a fall arrest system.

28. The leading edge of the roof was open and had no edge protection or barrier installed. There was some edge protection installed along the perimeter of the roof, including near the scaffolding.

29. 2 Types did not produce a work at heights permit for MB in response to a request from SafeWork. 2 Types also made admissions that no work at heights permits were completed for the removal of the roof sheets in accordance with the Plan.

30. MB had two SWMSs, however, neither addressed the risk of falls. These had been reviewed by 2 Types, but no feedback was provided.

31. The 2 Types Site Plan referred to a 2 Types SWMS for working at height. However, this was not produced in response to notices issued to 2 Types. The only SWMS received by SafeWork was from MB.

32. Under the Plan, workers were to be inducted to the Site by 2 Types.

33. Workers had been inducted to the Site by 2 Types, however these inductions were generic and did not address the Site-specific risks.

34. Mr Malas had been instructed not to go onto the roof by Mr Mustafa Malas.

Guidance Material

32. Guidance material was available to 2 Types in relation to controlling the risk of death or serious injury associated with falling from a height while working at the Site.

33. The SafeWork NSW, Code of Practice - Construction Work, August 2019 (Construction Code) and the Code of Practice - Managing the risk of falls in the workplace, August 2019 (Risk of Falls Code) were published and available to 2 Types prior to the incident.

34. The Construction Code provided “practical guidance for PCBUs on how to eliminate, or if that is not possible, minimise the risks relating to construction work”. These included risks relating to falling from heights. Measures to manage the risks included providing a secure barrier, setting up exclusion zones that prohibit persons from entering, and erecting catch platforms and/or nets.

35. The Risk of Falls Code contained further guidance on “minimising the risk of falls from height in workplaces”. This Code provided clear guidance for identifying fall hazards, including falls through brittle roofing materials and skylights. This Code specifically stated that particular attention should be given to work tasks that are carried out on or alongside a fragile surface such as brittle roofs and skylights.

36. SafeWork NSW, Safety Alert - Fall through plastic skylight panel, 6 December 2019 outlined an incident where a worker was injured after falling from height through a plastic roof-panel on a worksite. It provided guidance on identifying risks relating to falls from height, and methods to mitigate the hazard.

37. SafeWork NSW, Safety Alert - Falls through skylights and plastic roof sheeting safety alert, 6 July 2020 outlined a similar incident in which two workers received serious injuries after falling through a skylight and plastic roof sheeting. It provided guidance as to identifying and minimising risks of falling when working near skylights and plastic roof sheeting.

38. SafeWork NSW, Safety Alert - Work Safely at heights in construction, 28 March 2022 provided further guidance as to necessary SWMSs and procedures required in the workplace when working from heights over two metres.

Previous interactions with SafeWork

39. SafeWork had interactions with 2 Types on previous occasions shortly prior to the Incident, in relation to falls from height and fall protection requirements.

40. A SafeWork inspector visited the premises of Eastern Portable Buildings Pty Ltd (Eastern Portable) on 21 March 2022 and met with Mr Dane Dreyer, a 2 Types Operations Manager and Mr Tarik Tunali, a 2 Types Project Manager. 2 Types was subcontracting to Eastern Portable, constructing portable buildings at the site. The Inspector identified that there was no current system of work for high risk working at heights during construction of the modular buildings. There was no SWMS for the works that were being carried out. Risks were observed relating to working at heights without edge protection and fall arrest systems.

41. On 24 March 2022 the Inspector provided advice to 2 Types, including to Mr Andrews, in relation to falls from height and fall protection requirements. Mr Andrews was asked to develop or update a SWMS for fall from heights above two metres.

Prohibition Notices

42. SafeWork issued two Prohibition Notices to 2 Types following the incident.

43. On 19 April 2022 SafeWork issued Prohibition Notice 58205, which required 2 Types to cease allowing access to the roof area until an Inspector was satisfied that the risk to workers had been remedied. This included fixing secured covers over the skylights to prevent a fall from height.

44. On 19 April 2022 SafeWork also issued Prohibition Notice 58206, which required 2 Types to cease removing roof sheets and roof components until an Inspector was satisfied that risks to workers had been remedied. This involved developing a safe system of work, as 2 Types could not provide a SWMS or other documentation to show that the risk of falls from two metres had been managed.

Systems of Work Following the Incident

45. In response to Prohibition Notice 58205, 2 Types installed ply covers over all 3 skylights and marked them “Do not walk”.

46. In response to Prohibition Notice 58206, 2 Types engaged a roofing contractor who developed a SWMS that addressed the risk of falls from height. The control measures included installing a catch platform below the bottom chords of the roof trusses and fall restraint.

47. In response to the Incident 2 Types also:

48. Erected ‘No entry’ signs at the top of the scaffold and installed a physical barrier.

49. Conducted and documented weekly toolbox talks.

50. Completed “Take 5” checklists for all tradespeople.

51. Re-inducted all workers to the site.

52. Or 6 May 2022 SafeWork confirmed that Prohibition Notice 58205 and 58206 had been complied with.

53. Following the Incident, Sydney Catholic Schools engaged an independent safety auditor to inspect the construction works to identify WHS hazards and recommend improvements.

Evidence for the Defendant

50. Mr Luke Richardson affirmed an affidavit on 9 October 2025 (DX 1). Mr Richardson is the managing director and founding partner of 2 Types.

51. Mr Richardson outlined his qualifications and experience related to carpentry and construction. Mr Richardson has considerable experience in government projects.

52. 2 Types has been operating for a long time. This prosecution is the first significant incident that 2 Types have had on site. 2 Types have only had one other interaction with SafeWork which was referred to at par 41 of the Statement of Agreed Facts.

53. 2 Types and its workers co-operated and complied with the SafeWork Inspectors.

Statement of Regret

54. On behalf of 2 Types, Mr Richardson deeply regretted the circumstances that led to the serious injury to Mr Malas on 19 April 2022.

55. Mr Richardson recognised that as the principal contractor 2 Types should have done more to recognise the risk that eventuated and to protect persons from falls through skylights and to prevent unauthorised access to the scaffold.

56. On behalf of 2 Types, Mr Richardson unreservedly apologised to Mr Malas, his family, all the workers who were there and could have been affected, and the Court for what happened.

57. Since the incident Mr Richarson had made attempts to keep in touch with Mr Malas. He had made several calls to him to enquire of his health, most recently on 14 April 2025.

Background to Company and Safety in the Company

58. 2 Types had existed in some form since October 2010. 2 Types specialised in the construction of modular buildings for schools and commercial businesses.

59. Mr Richardson set out the background and history of 2 Types. This included a history of 2 Types’ safety systems.

60. Mr Richardson explained that it had always been 2 Types’ intention to operate as Tier 1 safety conscious principal contractors, even if they were not considered Tier 1 by the industry.

61. Mr Richardson took a small loan from his parents to cover the cost of engaging Mel Crookes and Associates to develop a safety, environmental and quality system.

62. Some sub-contractors refused to work with 2 Types because they needed to be well-resourced to meet the 2 Types safety standards.

63. In 2020 2 Types partnered with ISO Safe to develop an integrated safety, environment and quality system. As a result 2 Types achieved the following ISO accreditations for the first time on 27 September 2021:

64. ISO 45001:2018 (Occupational Health and Safety),

65. ISO 9001:2015 (Quality Management),

66. ISO 14001:2015 (Environmental Management).

The ISO accreditations have been maintained since.

64. As part of the ISO Accreditation, annual audits are conducted by ISO Safe, which provide feedback and plan corrective actions to maintain the safety systems. 2 Types promptly followed a corrective action plan provided by ISO Safe in 2022.

Changes to the Business

65. 2 Types transitioned from a partnership to a larger corporate presence, called the Modstruct Group Pty Ltd (Modstruct).

66. 2 Types and three other companies (which 2 Types worked extensively with in the construction of modular buildings) were incorporated. The purpose of this was so that the separate risks associated with the construction of modular buildings could be equally shared and better managed.

67. Modstruct uses the 2 Types safety systems. These are managed by ISO Safe.

68. Mr Richardson is responsible for the day-to-day management of the safety, environmental and quality systems. He relies on ISO Safe to ensure that Modstruct is advised and updated on changes. ISO Safe sends Mr Richardson updates which he turns into company-wide updates which are presented as toolbox talks and other safety alerts.

69. Mr Richardson set out the safety training provided to workers and costs related to workplace safety.

The Safety System

70. The main components of the 2 Types safety system included:

71. All workers were required to be adequately trained before they attended site, including first aid training, working at heights and elevated work platform training.

72. All workers were required to be inducted to site, and each site had site-specific Safety Rules, which workers were trained on.

73. Monthly and weekly toolbox talks.

74. Daily Take-5s were completed on each site.

75. WhatsApp was used to communicate safety messages to all staff in a timely manner. Messages were capable of being communicated without waiting for the next weekly toolbox talk.

76. The platform “Procore” was used to maintain training records and as a portal for all important site documents, templates and contracts. Specifically, the system called “workforce management”, from the Procore management tool, was used. This acts like a training matrix.

77. ISO Safe was engaged to provide advice, feedback and management services to ensure that the system remained compliant and up to date.

78. 2 Types followed the SafeWork LinkedIn page and gathered information on industry news to share around the company.

Changes to the systems

71. Following the incident, 2 Types took immediate action to make changes to its systems on how it treated skylights and other risks relating to falling from heights. These changes included:

72. Improving Site signage, including the warning about unauthorised access to scaffolds.

73. Reviewing all skylights on the Site to prevent further incidents.

74. Reviewing live edges to prevent falls from unprotected edges; part of this review was to create a guardrail-edge protection installation checklist.

75. Conducting a review of SWMSs and retraining on the SWMS to ensure that all relevant risks, as far as reasonably foreseeable, were identified.

76. Issuing a safety memo after the incident to remind workers of the dangers of falling from heights.

77. Conducting toolbox talks to reiterate that no one should work alone on roofs, and to increase general awareness for working at heights safety.

78. The review of all skylights on Site resulted in:

79. Identifying all the skylights and covering them with weight-bearing plywood.

80. Retraining workers and raising awareness of the dangers of skylights, including when they are not protected. This involved a toolbox talk discussing the incident.

81. Rewriting the SWMS for working at heights and re-inducting all workers into the SWMS.

82. 2 Types has replaced their system of using a chain to barricade scaffold entry with a spring-swing gate that can be locked. The issue of a chain being removed or not replaced when someone goes through it is eliminated by a self-closing gate.

83. 2 Types workers’ awareness of risks associated with falling through skylights and from edges without protection has increased.

84. Across Modstruct, additional changes have been implemented:

85. Changing the manufacturing process of the modular buildings to reduce the size of the purlins and including a full handrail system around the roof so that the risks associated with the use of fall arrest harnesses are eliminated.

86. Establishing a system to provide feedback to subcontractors when they produce their SWMSs to Modstruct. Previously, SWMSs from subcontractors were collected and marked as such, but 2 Types did not have a system to check for missing risks.

Model Corporate Citizenship

76. 2 Types has provided annual donations to charities and is affiliated with local football teams.

Consideration

77. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes *(*Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Objective Seriousness of the Offence

78. 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].

79. 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].

80. 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.”

81. 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].

82. 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.

83. 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.

84. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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.”

85. 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.”

86. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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.”

87. My findings about the defendant’s level of culpability are based upon the following:

88. The risk of a fall from height was known to 2 Types. Further, the risk was identified by readily available guidance material.

89. There was previous contact with a SafeWork inspector on another site which specifically drew attention to the failings of the 2 Types system for working at height. Yet nothing adequate was done.

90. The likelihood of the risk occurring was significant.

91. The potential consequences of the risk were death or serious injury.

92. There were simple and effective steps to eliminate or minimise the risk.

93. There was no burden or inconvenience of those steps being implemented.

94. Serious harm was caused to Mr Malas.

95. The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.

96. Counsel for 2 Types submitted (MFI 2, par 46) that “the culpability of the Defendant must be evaluated by the contribution of MB”. The only “contribution” identified in the submission was that Mr Malas, who had been prohibited from accessing the roof by MB, went up there anyway. Both 2 Types and MB had duties under the WHS Act. However, it was 2 Types which set up the means of accessing the roof but then failed to control such access. Further, it was 2 Types which had the power and duty to cover the skylights; require a proper SWMS; require working at heights permits; and warn all workers about the hazard posed by fragile, brittle plastic skylights.

97. I find that the level of culpability of 2 Types is in the mid range.

Deterrence

89. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

90. The penalty must reflect the need for specific deterrence. 2 Types is still conducting a business. Its operations involve constructing modular buildings and the continuing engagement of workers.

Aggravating Factors

91. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

92. 2 Types has no record of previous convictions: s 21A(3)(e) CSP Act.

93. 2 Types is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. 2 Types has been in business for approximately 15 years.

94. 2 Types is unlikely to re-offend: s 21A(3)(g) CSP Act.

95. 2 Types has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

96. 2 Types has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Malas was caused by its actions.

97. 2 Types entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give 2 Types a 25% discount for an early plea.

98. 2 Types gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

99. 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.

100. 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.”

101. There was no submission about capacity to pay, so this issue does not arise.

Costs

102. There will be an order that the defendant is to pay the prosecutor’s costs.

Penalty

103. My orders are:

104. 2 Types Constructions Pty Ltd is convicted.

105. The appropriate fine is $360,000 but that will be reduced by 25% to reflect the early plea of guilty.

106. Order 2 Types Constructions Pty Ltd to pay a fine of $270,000.

107. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

108. Order 2 Types Constructions Pty Ltd to pay the prosecutor’s costs.

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