SafeWork NSW v Aceline Plumbing Group Pty Ltd

BACKGROUND

1. The defendant conducted a business or undertaking that involved installing roof guttering and associated products. Mr Hussein 'Sam' Ayad ('Mr Ayad') is the sole director of the defendant. The defendant held a licence as a roof plumber, gasfitter, LP gasfitter, plumber, and drainer as well as holding a qualified supervisor certificate.
2. The defendant entered into a Lead Referral Agreement with Easy Fall Guttering Pty Limited ('Easy Fall') dated 28 June 2016 ('Referral Agreement'). Easy Fall conducted a business or undertaking that involved the supply and installation of roof guttering and associated products. Easy Fall entered into Lead Referral Agreements with licenced plumbers for the installation of roof guttering and associated products at its customers' premises. Mr Paul Axford ('Mr Axford') was the sole director and secretary of Easy Fall.
3. Mr James Hogan ('Mr Hogan') undertook work installing roof guttering. Mr Hogan had worked for various entities controlled by Mr Axford for approximately 12 years, including Easy Fall. Mr Hogan was a sole trader. He was not an authorised person for the purposes of s 6 of the Plumbing and Drainage Act 2011 (NSW) in that he did not hold (i) an endorsed contractor licence or a supervisor certificate in force under the Home Building Act 1989 (NSW) authorising the holder to do that kind of work; or (ii) a tradesperson certificate in force under the Home Building Act 1989 (NSW) authorising the holder to do that work. Mr Hogan did not hold a licence as a builder, plumber or roof plumber issued by NSW Fair Trading.
4. Mr Hogan was directed by Easy Fall to undertake installation work of Easy Fall's products under the defendant's/Mr Ayad's licence.

THE WORK

1. In early 2017, Easy Fall was engaged by Mr Peter Papadeas to replace the gutters at his property in Kangaroo Point ('the property'). Mr Axford attended the property to market Easy Fall products to Mr Papadeas. Mr Axford took measurements in order to design the shape of the guttering and provide a quote for the work. Mr Axford inspected the various sides of the property and saw that the area at the rear/northern side of the property would be difficult to access.
2. Mr Axford told Mr Papadeas that he would provide a tradesman who would install the product. On or around 8 March 2018, Mr Papadeas received an email from Easy Fall with two separate invoices: one invoice for the materials and another for the installation.
3. The legal form of the arrangement for the supply and installation of the guttering at the property was set out in the following agreements: 1. Tax Invoice/Agreement for the supply of 'Easy Fall Guttering' between Easy Fall and Mr and Mrs Papadeas, signed by both parties and dated 8 March 2017 ('Supply Agreement'); and 2. Tax Invoice/Installation Agreement between an 'Installer To Be Agreed (TBA)' and Mr and Mrs Papadeas signed only by Mr and Mrs Papadeas and dated 8 March 2017 ('Installation Agreement').
4. The Supply Agreement and Installation Agreement were in the same format, though the Installation Agreement had the 'Easy Fall Guttering' header removed and noted that it was 'From Installer: TBA'.
5. Mr Papadeas was not given a choice of installers nor an opportunity to negotiate a price with the installer.
6. The work relating to the installation at the property ('the work') was referred to the defendant by Easy Fall pursuant to the Referral Agreement. The lead was provided to the defendant from Easy Fall's Operations Manager, Christian De Wet ('Mr De Wet') on 10 April 2017 and included a copy of the Installation Agreement and the Supply Agreement.
7. On 12 April 2017, Mr De Wet sent an email to Mr Hogan which included a copy of the Installation Agreement signed by Mr Papadeas and the Supply Agreement. The email stated, 'This job should suit James [Hogan]'. Mr Hogan accepted the installation job at the property.
8. The only details that Easy Fall provided to Mr Hogan for the job was the Installation Agreement which included only a plan for the roof and no information about the site. Mr Hogan was not given any photographs of the site or an outline of the risks involved in undertaking the work.
9. Mr Hogan did not contact Mr Papadeas or otherwise enter into any agreement in relation to the installation of the Easy Fall guttering at the property at the property with Mr Papadeas.
10. The defendant permitted Mr Hogan, as a non-licenced installer, to use the defendant's licence to undertake installation work at the property. In order to undertake work under the defendant's licence, Mr Hogan was required to pay the defendant a fee, approximately 10% of the Installation Agreement price, which would be paid by the customer or Mr Hogan.
11. On or around 19 April 2017, Mr Hogan attended the property for the installation. This was the first time that Mr Papadeas had contact with Mr Hogan.
12. Mr Hogan expressed his safety concerns to Mr Papadeas, in particular that the north side of the house was going to be difficult to work on as it was the highest part of the guttering.
13. On or around 20 April 2017, Mr Hogan telephoned Mr De Wet and told him that he did not want to do the job as he was concerned about the rear section and how he could safely access the gutters. Mr De Wet told Mr Hogan to contact Mr Axford. Mr Hogan contacted Mr Axford and expressed his concerns.
14. Mr Axford attended the property to give Mr Hogan instructions in relation to the guttering. With regards to the rear section of the property, Mr Axford said to Mr Hogan words to the effect of 'a man of your calibre should be able to work it out.' Mr Axford did not provide Mr Hogan with any information or instruction as to a safe work method to implement while undertaking the installation of the guttering, and in particular, any instruction as to control measures to be implemented when working at heights, including the use of temporary work platforms.
15. Mr Hogan did not want to do the installation at the property, but he felt forced by Mr Axford to undertake the installation and was concerned that he would not receive any further work unless he did the job at the property. Mr Hogan believed that the installation involved too much work for a single person (with or without an assistant) and that it was a complicated installation.
16. Mr Hogan commenced the work in early April, initially being assisted by an unskilled worker, however this worker ceased working with Mr Hogan on or around 9 May 2017. In late April or early May, Mr Hogan received a call from Mr Ayad, who asked him why the job was taking so long to complete. Mr Hogan stated that it was a difficult job and he had concerns about how he was going to complete the rear section safely. Mr Ayad did not provide Mr Hogan with any information or instruction as to a safe work method to implement while undertaking the installation of the guttering, and in particular, any instruction as to control measures to be implemented when working at heights, including the use of temporary work platforms.
17. In late April or early May, Mr Axford requested that Mr Papadeas make a part-payment for the installation, which he directed Mr Papadeas to pay into the defendant's account. This was the first time Mr Papadeas became aware that the defendant/Mr Ayad had any involvement in the work.
18. Mr Hogan continued working by himself, however, as the work required lifting long lengths of gutter into place and the movement of materials from ground level to roof level, Mr Hogan asked Robbie Parker ('Mr Parker') to assist him. Mr Parker previously worked for Mr Axford as a roof plumber though had ceased working for Mr Axford after a disagreement. Shortly after this, Mr Axford became aware that Mr Parker was working at the property and telephoned Mr Hogan to instruct him that Mr Parker was not to work at the property. Following this direction, Mr Parker ceased helping Mr Axford with the work and left the property.

THE INCIDENT

1. On 16 May 2017, Mr Hogan was installing the Easy Fall roof guttering at the property. Mr Hogan was working alone.
2. Mr Hogan was working at the rear/northern side of the property, where the base of the house was adjacent to a pool. To access the rear corner of the roof, Mr Hogan placed two planks across the pool to support a trestle, which supported one end of a third plank. An extension ladder with a ladder bracket was used to support the other end of the third plank. Mr Hogan used this as a makeshift platform. It was approximately two metres high.
3. Mr Hogan took of the timber fascia of the roof and installed the new brackets and PVC gutter. Mr Hogan then attempted to lift a 7.5 metre length of steel shell into position when the trestle moved from underneath, causing him to fall to the concrete edge of the pool below.
4. Mr Hogan suffered serious injuries, including a spinal L3 burst fracture. He was admitted to St George Hospital where he underwent a lumbar fusion operation.
5. After the incident, Mr Ayad completed the work on behalf of Easy Fall, after being instructed to do so by Mr Axford. Mr Ayad estimated that only 10 metres of guttering needed to be installed to complete the installation. Mr Ayad installed scaffolding to access the gutter line and hired a labourer to assist him to lift two 7.3 metre guttering pieces. Mr Ayad stated that the length of the pieces of guttering to be installed made the installation dangerous, as it required a number of experienced workers to carry and place the guttering as part of the installation.

NOTIFICATION

1. On 16 May 2017, Mr Hogan called Mr De Wet and notified him of the incident. On or around the same day, Mr De Wet called Mr Ayad and notified him of the incident.
2. The defendant did not, through Mr Ayad or by any other means, notify SafeWork NSW of the incident. SafeWork NSW became aware of the incident on 1 August 2017, when Mr Hogan lodged a Request for Service with SafeWork NSW.

THE DEFENDANT'S ROLE IN INSTALLATIONS

1. The defendant's arrangement with Easy Fall was to allow non-licensed installers such as Mr Hogan to use the defendant's licence when undertaking installations.
2. For the use of the defendant's licence, Mr Ayad/the defendant would earn a small fee, approximately 10% of the Installation Agreement price, which would be paid by the customer or sub-contractor. The defendant was not required to do any of the work and Mr Axford would appoint the subcontractors.
3. In allocating jobs, Easy Fall would email the defendant and; 1. inform them of the job; 2. include the name of the recommended individual installer (such as Mr Hogan); 3. provide them with a completed Installation Agreement (generated by Easy Fall prior to any communication with the defendant), which had; 1. the defendant's details already inserted (by Easy Fall) as the installer; 2. details of the installation and any special instructions for the installer; 3. the contract price included; and 4. already been signed by the owner of the property; 1. on occasions, provide directions as to when the job was required to be undertaken; 2. on occasions, raise complaints/concerns about the quality of the installation and direct that the defendant return to the job and undertake repairs or rectifications; and 3. include a 'Customer Satisfaction Checklist' which required the installer to answer a series of questions relating to the quality of the installation to be signed off by both the customer and the installer.
4. On occasions, Easy Fall would allocate jobs to unlicensed installers who were permitted to work under the defendant's licence without Mr Ayad's knowledge.

The Referral Agreement

1. The defendant had entered into a referral agreement with Easy Fall. Pursuant to the Referral Agreement, the defendant was bound to comply with the terms and conditions set out therein when 'undertaking installations' for Easy Fall. The introductory provisions of the Referral Agreement introduce Easy Fall as a manufacturer and supplier of the Easy Fall Guttering System though 'not an installer of guttering [and who has] no desire to carry out building or plumbing work or services'. The defendant is identified as the 'Installer' who is a 'licensed plumber licensed to install guttering'. The Referral Agreement sets out the mechanism by which Easy Fall would refer 'leads' to the defendant. The Referral Agreement also required the defendant to comply with specified work health and safety requirements and to indemnify Easy Fall for all work health and safety claims (Clause 3.1).
2. Pursuant to the Referral Agreement, Mr Axford, on behalf of Easy Fall, determined the cost that the customer would be charged for the installation and informed the defendant of that amount when it forwarded the Installation Agreement for the job. The defendant, nor the worker assigned to the job by Easy Fall, were permitted to negotiate the cost with the client, and if there were increases in price required for safety equipment for example, Mr Axford's approval was required.
3. If the worker assigned to do the installation work by Easy Fall was unlicensed, Easy Fall would send the quote and Installation Agreement to the licensed plumber, such as the defendant, and to the contracted worker, such as Mr Hogan, who worked under the defendant's licence. The defendant did not attend the site of the installation at all, but simply received a percentage of the installation cost in return for the use of its licence. The worker and the defendant were accountable to Easy Fall and workers wore uniforms that read 'Easy Fall' on them when undertaking installations.
4. Previously, Easy Fall had scaffolding available at its premises for installers to use. Mr Hogan and Easy Fall
5. When Mr Hogan commenced working for Easy Fall, he was trained on the installation of the guttering system by another builder who was trained by Easy Fall. Mr Hogan then occasionally supervised trainees on jobs, in order to show the trainee how to install the system, and who were able to assist Mr Hogan.
6. Prior to Mr Parker ceasing work for Easy Fall, Mr Hogan worked under Mr Parker's licence. After this, Mr Hogan was directed by Easy Fall to work under the defendant's licence. At the date of the incident, Mr Hogan had worked under the defendant's licence for approximately three months.

Work Health and Safety Regulation 2011

1. The defendant, along with Easy Fall and Mr Hogan, was required, under Regulations 34 to 38 of the Work Health and Safety Regulation 2011 (NSW) ('the Regulation'), to: 1. identify reasonably foreseeable hazards that could give rise to a risk to health and safety; 2. eliminate identified risks so far as is reasonably practicable; 3. if it was not reasonably practicable to eliminate the risk, then minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control; 4. maintain implemented control measures so that they remained effective; and 5. review, and if necessary, revise, risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.
2. The defendant, along with Easy Fall and Mr Hogan, was required, under Regulation 39, to ensure that information, training and instruction provided to a worker was suitable and adequate, having regard to: 1. the nature of the work carried out by the worker; 2. the nature of the risks associated with the work at the time the information, training or instruction is provided; and 3. the control measures implemented.
3. The defendant, along with Easy Fall and Mr Hogan, was required, under Regulations 78 to 79, to manage/minimise 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.

Code of Practice: Managing the Risk of Falls at Workplaces (2016)

1. Prior to the incident, the SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces (2016) ('the Code') was published and available. The Code provides practical guidance to persons conducting a business or undertaking on how to manage health and safety risks arising from falls.
2. The Code, among other things, outlines the safe use of ladders in the workplace, including: 1. Ladders must be set up on a stable and level surface. 2. The ladder should be secured against displacement (i.e. slipping or sliding). 3. The use of platforms supported by trestle ladders are only suited to light duty tasks, and are only suitable for use at heights above 2 metres where toe boards and guardrails are utilised. Alternatives to trestle ladders should be considered, such as light duty aluminium mobile scaffolds.
3. The Code outlines fall prevention devices, including temporary work platforms (including scaffolding). The Code outlines how to manage the risk of falls by providing guidance about how to identify hazards, assess the risk, control the risk and review control measures.

Work Health and Safety Act 2011 (NSW)

1. Section 46 of the Act provides: '46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.'
2. Section 35 of the Act provides: '35 What is a "notifiable incident" In this Act, notifiable incident means: (a) the death of a person; (b) a serious injury or illness of a person, or (c) a dangerous incident.'
3. Section 36 of the Act provides: '36 What is a "serious injury or illness" In this Part, serious injury or illness of a person means an injury or illness requiring the person to have: (a) immediate treatment as an in-patient in hospital, or (b) immediate treatment for: … (vi) a spinal injury, or … and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.'
4. Section 38 of the Act provides: '38 Duty to notify of notifiable incidents (1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given: (a) by telephone; or (b) in writing.'

SYSTEMS OF WORK PRIOR TO THE INCIDENT

1. The incident was a notifiable incident within the meaning of s 35 of the Act in that Mr Hogan suffered a serious injury as defined by s 36 of the Act, namely an injury requiring him to have immediate treatment for a spinal injury that arose out of the conduct of the defendant's business or undertaking. The defendant failed to notify the Regulator, SafeWork NSW, immediately after becoming aware of the incident.
2. Under s 46 of the Act, the defendant was required to consult, cooperate or coordinate activities with Easy Fall and/or Mr Hogan as other persons who had duties in relation to the work at the property. The defendant failed to do so, and in particular, the defendant did not: 1. consult with EFG and Mr Hogan about the hazard(s) and risk(s) associated with the installation of the roof guttering, including the risk of falling from heights; 2. consult with EFG and Mr Hogan about the control measures that should be implemented to control the risk of falling from heights, and in particular the use of temporary work platforms such as temporary or mobile scaffolding from which to undertake the work at the site; 3. cooperate with EFG and Mr Hogan in relation to arranging for the provision of temporary work platforms such as temporary or mobile scaffolding from which to undertake the work at the site; 4. coordinate with EFG and Mr Hogan in relation to the provision of an additional worker to assist with the installation of lengths of guttering that were required to be installed by workers while working at heights at the site; 5. coordinate with EFG and Mr Hogan by planning and organising the method of work pursuant to which the installation of roof guttering at the site should be undertaken, including that the installation of lengths of guttering that were required to be installed by workers while working at heights at the site be undertaken by more than one worker, while working from a temporary work platform such as temporary or mobile scaffolding.
3. Despite the fact that it was required under the Referral Agreement to do so, the defendant did not undertake a risk assessment or visit the site prior to the incident or the work being commenced.
4. The defendant did not direct or check that a risk assessment had been conducted and documented by Easy Fall or Mr Hogan in relation to the work which was in accordance with Regulations 34 to 38.
5. Neither the defendant nor Easy Fall provided to Mr Hogan sufficient details of the property or the hazards associated with the work prior to commencement of the work.
6. Neither the defendant nor Easy Fall had a safe work procedure for the task of installing roof guttering. The defendant did not consult with Easy Fall or Mr Hogan as to whether they had developed a safe work procedure for the installation of roof guttering which identified in particular control measures for working at heights. It did not confirm, prior to the commencement of the work, that Easy Fall or Mr Hogan would implement control measures when working at a height, such as by use of temporary work platforms or scaffolding.
7. Neither the defendant or Easy Fall provided Mr Hogan with safety equipment for the work. The work platform constructed by Mr Hogan was constructed using his own materials and was insufficient in ensuring safe access to the northern/rear side of the house.
8. Neither the defendant nor Easy Fall provided workers with training or supervision for working at a height.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

1. Following the incident, the defendant claimed that it no longer carried out work at a height.

Admitted omissions

1. The full detail of the admitted omissions on the part of the defendant in failing to consult, co-operate and co-ordinate with EFG and Mr Hogan are contained within paragraphs 22(a) in s 46 of the Summons.
2. The failures on the part of the defendant were, inter alia, failures to: 1. consult with EFG and Mr Hogan about the hazards and risks associated with the installation of roof guttering, including the risk of falling from heights (22(a)); 2. consult with EFG and Mr Hogan about the control measures that should be implemented to control the risk of falling from heights (22(b)); 3. co-operate with EFG and Mr Hogan in relation to arranging for the provision of temporary work platforms to undertake the work at the site (22 (c)); 4. co-ordinate with EFG and Mr Hogan in relation to the provision of additional workers to assist with the installation of guttering at the site (22(d)); 5. co-ordinate with EFG and Mr Hogan in relation to the method of work for the installation of roof guttering at the site (22(e));
3. The pleaded measures as outlined at [54] & [60] above are admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, in breach of its duty under s 46 of the Act.
4. The facts as agreed in the s 46 SOF and the documents in the TB establish each of the particulars.
5. The full detail of the admitted omissions on the part of the defendant in failing to notify the regulator in relation to the incident in breach of its statutory duty under s 38(1) are contained within paragraphs 8-12 in s 38 of the Summons.
6. The facts as agreed in the s 38 SOF and the documents in the TB establish each of the particulars.

SENTENCING

1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, "ensuring the safety, health and welfare of workers and others on workplace premises": s 3 of the Act.
2. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to recognise the harm done to the victim of the crime and the community.
3. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3 of the Act.
4. The court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
5. The court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis"; Markarian v The Queen (2005) 228 CLR 357.
6. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 in this way: '109. 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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'
7. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89].

Consultation, co-operation and co-ordination - s.46

1. The Work Health and Safety Consultation, Co-operation and Coordination Code of Practice dated December 2011 ('Consultation CoP') (TB at Tab 11) details why consultation is important and an essential part of managing health and safety risks.
2. The Consultation CoP also provides guidance in relation to the importance in managing risks at cl 2.1, and guidance in relation to how to consult, co-operate and co-ordinate activities with other duty holders in Part 5.
3. In particular the Consultation CoP notes that co-operating and co-ordinating activities with others who are involved in work or things associated with work will make the control of risks more likely and assist each duty holder comply with their duty. It can also mean that health and safety measures are more efficiently undertaken.
4. In respect of the activities that were the subject of the incident, the work relating to the installation at the property was referred to the defendant by EFG pursuant to the Referral Agreement. The Referral Agreement required the defendant to comply with work, health and safety requirements for the referred work.
5. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 per Kearns J at [37].
6. The risks associated with the installation work at the incident site, and in particular the risk of falls from height whilst installing roof guttering, was a foreseeable one, it was one that was known or identified, or reasonably able to be known or identified, as at the date of the incident.
7. In circumstances where Mr Hogan was working under the defendant's licence, the defendant should have taken steps to consult with EFG and Mr Hogan about the hazards and risks relevant to the installation of the guttering at the incident site, and in particular the risk of falls from heights.
8. The defendant simply should not have left it to Mr Hogan to assess the hazards and risks. Mr Hogan notified EFG that he did not want to do the job, as it was too dangerous. He felt that he had to do it because of pressure by Mr Axford.
9. An examination of the photographs in the TB clearly demonstrate that the manner in which Mr Hogan was to perform his task was precarious. The ladder that he was on the top of was placed over some beams that he had placed across the swimming pool. He was replacing guttering on the second story of the dwelling. He was doing so on top of a ladder, and single-handedly manoeuvring a piece of guttering that was 7.5m long. There is, to my mind, no possible way that anyone who was observing and co-ordinating these works could not have seen that this was an extremely dangerous operation, and one that should have been expressly prohibited.
10. It ought to have been obvious to the defendant that there was a requirement for control measures to be implemented to control the risk of falling from heights. Simple measures such as the use of a temporary work platform or mobile scaffolding from which to undertake the work may have eliminated the risk, or at least minimised it. The defendant should have co-operated with EFG and Mr Hogan to arrange for such equipment to be available.
11. It was, or ought to have been apparent to the defendant that the installation of 7.5 m lengths of guttering at heights of more than 2 m at the site would have required more than one worker to be undertaken safely. It should have been glaringly obvious to the defendant that this work was inherently dangerous and it should have co-ordinated with EFG and Mr Hogan to provide an additional worker.
12. It would have been impossible for the defendant to not have foreseen that there was a significant risk that the worker could fall from height and suffer fatal or serious injuries.
13. However, despite the fact that it was required under the Referral Agreement, the defendant did not undertake a risk assessment or even visit the site prior to the incident.
14. The defendant failed to: 1. Direct or check that a risk assessment had been conducted and documented by EFG or Mr Hogan; 2. Take any steps to assess whether EFG or Mr Hogan had undertaken a risk assessment in relation to the installation of the roof guttering; 3. Take any steps to inform itself of the hazards and risks associated with the installation of the roof guttering, including the risks of falling from heights; 4. Take any steps to assess the hazards and risks, or the appropriate control measures that should be implemented to control the risks; 5. Provide Mr Hogan with sufficient details of the site, or of the hazards associated with the work, to enable him to safely undertake the work; 6. Devise and implement a safe work procedure for the task of installing roof guttering; and 7. Confirm with EFG or Mr Hogan prior to the commencement of the work that appropriate control measures were in place.
15. Instead, it was left to Mr Hogan to construct a makeshift work platform to attempt to install lengths of roof guttering at heights of over 2 metres.
16. The defendants failure to engage in appropriate consultation and co-ordination of activities with EFG and Mr Hogan was a serious failure, particularly in circumstances where the agreement between the defendant and EFG stated that the defendant was to indemnify EFG with respect to all work health and safety claims (cl 3.1). Such breach was a significant contributing factor to the circumstances in which Mr Hogan was exposed to the risk which materialised in the date of the injury.
17. By its plea, the defendant has admitted that they measures pleaded in paragraph 22(a)-(e) of the Summons were reasonably practicable measures that it could have implemented to comply with its duty and to eliminate or minimise the risk.
18. I find that the offence is in the mid-range of objective seriousness.

Failure to Notify - s 38

1. Of critical importance is the fact that the defendant failed to notify SafeWork of the incident at all. SafeWork were only notified of an incident having occurred when they were contacted by Mr Hogan, the injured worker, on 1 August 2017, some 21/2 months after the incident. Mr Ayad on behalf of the defendant completed the job and as such he must have known about the incident.
2. The defendant as an organisation that operates in the industry should, as part of its business or undertaking, known of its obligations to notify SafeWork as required under the Act.
3. The defendant has offered no explanation as to why it did not notify SafeWork, in circumstances where it knew of the incident and of the serious injuries sustained by Mr Hogan.
4. The failure to notify SafeWork is a significant failure as it can adversely impact on the ability of SafeWork to undertake its investigation into any potential breaches of the Act by duty holders, and to observe the site, interview witnesses and obtain relevant documents. Non-compliance with the duty to notify frustrates the investigation of the incident.
5. In circumstances where there is no explanation offered I am of the view that this is in the top end of the mid-range of offending.
6. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.
7. Subjective factors 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) 49 NSWLR 700 at [714].
8. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.
9. 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: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.
10. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].
11. The maximum penalty for the s 38 offence is $50,000, and for the s 46 offence is a fine of $100,000.00, which reflects the legislature's view of the seriousness of the offence.

DETERRENCE

1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388
3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
4. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … '[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
5. General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons working in at heights, and on ladders, is very concerning.
6. Workers being subjected to a risk of serious injury or death as a result of falling from height is not unique to the circumstances of this defendant. The imposition of a component directed towards general deterrence, it is hoped, will highlight the need to other corporations and individuals of the need for proper planning and development of procedures to eliminate, or at the very least severely minimise the presentation of such a risk.
7. Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with working unsupervised at height in an industrial context.
8. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
9. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
10. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.'
11. There is no evidence before me that the defendant had any systems or procedures in place prior to the incident. There is no evidence before me that the defendant ever attended the site where the incident occurred. There is no evidence before me, and the defendant concedes that, he did not supervise Mr Hogan at the work site. There is no evidence before me that the defendant has changed its systems of work, if there ever were any, nor that it has initiated changes such that the co-ordination and supervision of workers will happen in the future.
12. As previously stated, there is no explanation for the failure to notify SafeWork at all.
13. In these circumstances I find that the need for specific deterrence is significant factor in imposing a penalty, given the fragrant disregard this defendant had for the safety of their workers and its obligations under the Work Health and Safety legislation. The defendant remains in the industry, and one can only assume that the defendant continues to perform the building works in a similar fashion to that which was being performed as at the date of the incident.

AGGRAVATING FACTORS

1. The injuries sustained by Mr Dennis were significant: s 21A(2)(g) of the Sentencing Act.
2. An affidavit of Hussein Ayad of 4 December 2020 was handed up in Court. Mr Ayad swore this affidavit on behalf of the defendant in his capacity as the sole director of the defendant. There are passages in the affidavit that are very troubling, as follows: '11. On or around late 2013, I decided to stop working with PAUL AXFORD as our relationship had become unsustainable. This was because I felt that PAUL AXFORD 'was over controlling' and 'he did not listen to me' nor 'did he treat me as one of his equals'. 12. From around 2014 to mid-2015, I began working for myself. During this time my business experienced various levels of success. I also remember feeling empowered as, using my own words, 'I was my own boss'. Unfortunately, on or around late 2015, my business experienced a severe downturn in business activity which resulted in me looking for employment opportunities. 13. On or around early 2016, I was struggling financially. It was during this time that I approached PAUL AXFORD about the possibility of working for him again. 14. To the best of my recollection, I remember saying to PAUL AXFORD, using words to the effect of 'Paul, I am looking for work. I am going through a bit of a tough period. Do you think you could help me out and I pick up some work with you?'. 15. PAUL AXFORD responded to my proposition words to the effect of 'I might be able to help, I am looking for someone with a plumbing licence'. He further stated, using words to the effect 'If you are going to work for me, I am going to need to use your plumbers' licence. 16. Upon hearing this, I was excited about the prospects of finding work and I stated to PAUL AXFORD, using words to the effect of 'yeah - sure - why not!'. 17. PAUL AXFORD then said to me, using words to the effect of 'But Sam, I don't want you to leave me like you did last time, so if you want to work with me, you are going to have to pay me $2000 as a bond.' 18. I remember feeling surprised by this but not wanting to lose the employment opportunity with PAUL AXFORD, I agreed using words to the effect of 'Ok'. 19. On or around this time, I paid the sum of $2000 to PAUL AXFORD. To date, I have not had this money (or any part thereof) returned to me from PAUL AXFORD on or from EASY FALL GUTTERING PTY LTD. 20. Sometime after I paid the bond, I remember Paul Axford proposing our business arrangement. Using my words, the business arrangement can be explained as follows: (a) EASY FALL GUTTERING PTY LTD would source the client. (b) EASY FALL GUTTERING PTY LTD would arrange for one of its installers to complete the job. (c) EASY FALL GUTTERING PTY LTD would supply all the job materials. (d) On completion of the job, EASY FALL GUTTERING PTY LTD would receive 70% of the total job price. (e) On completion of the job, the installer would receive 30% of the total job price ('Installer Price'). (f) If an installer operated under my licence, then on competition of the job, I would receive 10% of the Installer Price from the installer.' 21. With the benefit of hindsight, I now realise that the relationship with EASY FALL GUTTERING PTY LTD and PAUL AXFORD was totally unacceptable. Whilst I cannot offer a satisfactory explanation behind this relationship, all I can say, using my words is that 'I was looking for an easy way out of a difficult financial situation'.'
3. In essence, the defendant was allowing his plumbing licence to be fraudently used by other people. He was paid by EFG for supplying his licence to be used illegally by others.
4. In addition, there are references made in his affidavit to the effect that he was willing to assist SafeWork to prosecute EFG and Paul Axford. This was also highlighted in the written submissions relied on by the defendant and on a number of occasions in oral submissions. It seems to me that the defendant was trying to lessen its own penalty by offering to give evidence against someone else.
5. Whilst the assistance offered by the defendant to SafeWork NSW is a mitigating factor I can take into account on sentence (s 21A(3)(m) of the Sentencing Act, it does not diminish or minimise the seriousness of the defendant's conduct in relation to the offence. I note, however, that the defendant is not charged with any additional offences as a consequence of this conduct.

MITIGATING FACTORS

1. The defendant does not have a record of previous convictions: s 21A(3)(e) of the Sentencing Act.
2. In his affidavit Mr Ayad expresses his remorse and contrition which I accept as genuine. He also accepts responsibility for the defendant and the suffering that these events have caused, and both of these matters will afford the company some leniency: s 21A(3)(i) of the Sentencing Act.
3. Although the defendant entered pleas of guilty only after the matter had been listed for an ex-parte hearing, I will allow the deduction of 25% for the utilitarian value of the pleas: s 22 of the Sentencing Act.

CAPACITY TO PAY

1. The defendant has raised the issue of their ability to pay any fine due to the financial circumstances of the defendant, but he does not make an application under the s 6 of the Fines Act 1996 (NSW).
2. Nonetheless, the onus is on the defendant to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of a penalty: McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310 at 224. The offender's capacity to pay in relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16].
3. It is for the defendant to place detailed financial information that fully discloses the company's financial circumstances to the Court so as a proper assessment of its capacity to pay. However, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must be reflective of the objective seriousness of the offence.
4. Mr Ayad in his affidavit raises matters that he asks the court to consider as to the penalty and the effect that it may have on himself, the defendant and his family. None of the statements he makes are supported by any financial documentation.
5. The general perception that I have received of the defendant and Mr Ayad through his affidavit, is that the defendant had a blatant disregard for its work health and safety obligations, had little or no regard for the safety of its workers or contractors, has not learnt any lessons from this incident, has made no changes to the operations of the defendant as a consequence of the incident and the prosecution, but seeks leniency on the basis that he would assist in the prosecution of EFG and its director.
6. To suggest that the defendant is of good character in such circumstances is a nonsense. For that reason I cannot believe anything the Mr Ayad says about his financial circumstances and his ability to pay a fine. I will not take either of those matters into consideration to afford the defendant any leniency.
7. Similarly given that there is no evidence that the defendant had in place any measures to address his work health and safety obligations prior to the incident, no evidence that he has made any changes or addressed his admitted failings, I hold no hope of there being any real chance of the defendant not re-offending. The defendant is therefore not entitled to any leniency for that prospect.
8. Even if I accept that payment of a fine might be difficult for the defendant, the objective seriousness of the offence is such that it must be reflected in a significant fine. The seriousness of the offences are such that a significant fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine would not provide the appropriate level of specific and general deterrence that is expected given the circumstances of this offending.
9. The appropriate fine the s 38 offence is $40,000. The defendant is entitled to a discount of 25% for the early plea.
10. The appropriate fine for the s 46 offence is $80,000. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the s 38 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $30,000.00. 4. The appropriate fine for the s 46 offence is $80,000.00 and that will be reduced by 25% to reflect a plea of guilty. 5. Accordingly, I order the defendant pay a fine of $60,000.00. 6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. 7. The defendant is to pay the prosecution's costs as agreed or assessed.

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: 18 December 2020