SafeWork NSW v Customconstruction Pty Ltd

Hearing dates: 25 March 2026

Date of orders: 1 April 2026

Decision date: 01 April 2026

Jurisdiction: Criminal

Before: Russell SC DCJ

Decision: (1) Customconstruction Pty Ltd is convicted.
(2) The appropriate fine is $240,000 less 25% to reflect the plea of guilty, further reduced to take account of capacity to pay.
(3) Order Customconstruction Pty Ltd to pay a fine of $100,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5) Order each party to pay its own costs of the proceedings, including the reserved costs.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – parity
COSTS – prosecution costs – reserved costs of interlocutory application
OTHER – fall from height – slip while climbing down the outside of scaffold – unprotected edges – no site-specific SWMS – unsafe entry to roof – access to roof without appropriate safety measures in place – failure to assess safety of scaffold

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291

Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148
SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144
SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited: SafeWork Australia, Guide to Scaffold Inspection and Maintenance, July 2014
SafeWork Australia, Safe Work on Roofs Information Sheet, January 2016
SafeWork NSW, Managing the Risk of Falls Code of Practice, August 2019

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Customconstruction Pty Ltd (Defendant)

Representation: Counsel:
A Mykkeltvedt (Prosecutor)
C Magee (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Holding Redlich (Defendant)

File Number(s): 2024/235538

Judgment

1. The defendant Customconstruction Pty Ltd (Customconstruction) engaged Wrigley Metal Roofing Co Pty Ltd (Wrigley) as a subcontractor to carry out roof and cladding works at a residential premises. On 25 July 2022 Mr Angus Hoskins, an employee of Wrigley, was severely injured when he slipped and fell approximately 3.8 metres onto the concrete below, while climbing down the outside of a scaffold.

2. Customconstruction 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 Hoskins 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 $1,860,843.

The Risk

4. The risk is described in par 20 of Annexure A of the Amended Summons as follows:

“The risk was the risk to Mr Hoskins, suffering death or serious injury as a result of falling from height while he was undertaking work in the area of scaffolding and/or the plank positioned between the scaffolding and the roof.”

Reasonably Practicable Measures

5. Paragraph 21 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 Mr Hoskins, was not put at risk, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable, the risk:

a. develop, implement and enforce (including by appropriate training and supervision) a site-specific SWMS for the work that identified the hazard of unprotected edges and described the measures to be implemented to manage the hazard, including in relation to the maintenance of the scaffolding in place;

b. ensure that workers used only safe methods of access to roof/s at the Site;

c. ensure that workers did not access roof areas unless required to do so, and only where the appropriate safety measures and components of the scaffold, were in place at those locations; and

d. assessing the scaffold and whether it was safe (including by verifying that the components of the scaffold, in particular handrails, mid rails, transoms and toe boards were correctly installed and remained in place).”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. Customconstruction conducted a business of residential construction work, and engaged subcontractors, including Wrigley and its employees, to work on a house at Avalon Beach, NSW (the site).

8. The scope of the works at the site was the renovation of an existing dwelling, located at the front of the site, and the addition of an extension to the existing dwelling at the rear section of the site.

9. Customconstruction was the principal contractor for the project at the site.

10. In or around February 2022, Wrigley was engaged by Customconstruction to undertake metal roofing and cladding work on the existing dwelling and the extension.

11. In or around early May 2022, Webster Workplace Solutions Pty Ltd (Webster) was engaged by Customconstruction to install prefabricated steel modular perimeter scaffolding with one internal ladder access for the two levels, around all four faces of the extension at the rear end of the site. On 4 May 2022, Webster completed the scaffolding and provided a handover certificate. The handover certificate stated that the scaffold was “safe for use and its intended purpose unless altered.”

12. Mr Hoskins was an apprentice roof sheeter and trainee supervisor employed by Wrigley. Mr Hoskins was in the final stages of his apprenticeship with Wrigley and was about to be signed off as a tradesman. In the absence of other senior managers, Mr Hoskins would be site supervisor.

13. The works at the site consisted of two sections. The first was the existing dwelling which required the re-sheeting of the roof as well as renovations. The second section was an extension of the existing dwelling, to be constructed on a concrete slab with a corrugated metal roof and timber clad walls.

14. Customconstruction removed a portion of the top of the scaffold to install an awning and installed a handrail on this top portion of the scaffold. The scope of works required the installation of the awning to the existing dwelling, adjacent to the scaffolding.

15. Due to the placement of the scaffold, a further section of the scaffold was removed by Customconstruction to access the cladding and to install the final portion of cladding and a HEKA hood (a bracketless awning system). A licensed scaffolder was not engaged to alter the scaffold.

16. In the week prior to 25 July 2022, a plank was placed on the top level of the scaffold extending onto the roof between the existing dwelling and the extension. The plank measured approximately 4.01m long, 230mm wide and 45mm deep.

17. The plank was installed to allow workers to move from the scaffold to the roof area between the existing dwelling and the extension.

18. The plank was positioned at a height of approximately 3.8 metres above the ground below. It was not secured to the roof or the scaffold.

19. At the point of installation of the HEKA Hood all work to the roof of the extension had been completed except for the installation of end capping. Work was ongoing in relation to the roof of the existing part of the dwelling.

20. Mr Steven Koutouzis was a supervisor at the Site. Mr Koutouzis and Mr Samuel Pollnow, the sole director of Customconstruction, oversaw all the works in the weeks leading up to the incident.

The Incident

21. On 25 July 2022 at around 7am, workers from Wrigley and Customconstruction arrived on the site.

22. At an informal toolbox talk, the workers discussed the works to be undertaken that morning and made observations that the roof was wet and dewy.

23. Mr Hoskins got onto the roof between the existing dwelling and the extension, without being instructed to do so. Mr Hoskins traversed the plank extending from the scaffold to the adjoining roof.

24. When he was observed on the roof, Mr Hoskins was told by the director of Wrigley, Mr Curtis Beetham, to get down from the roof because it was unsafe due to the roof being wet and dewy.

25. Subsequently, Mr Hoskins descended from the roof by climbing down the outside of the scaffold. While he was climbing down, Mr Hoskins slipped and fell approximately 3.8 metres to the concrete below.

26. Mr Hoskins suffered serious head injuries including cerebral haematomas, skull and facial fractures, bilateral pneumothoraxes and pulmonary contusions.

Legal obligations and guidance materials

27. Clause 78 of the Work Health and Safety Regulation 2017 (the WHS Regulation) provides that duty holders must manage the safety risks associated with a fall, including on an elevated workplace from which a person could fall.

28. Clause 79 of the WHS Regulation sets out the specific requirements to minimise the risk of a fall. Clause 79(3) sets out a hierarchy of controls for providing adequate protection against the risk of a fall. A duty holder provides adequate protection against the risk of a fall if it maintains a safe system of work, including by:

(a) providing a fall prevention device if it is reasonably practicable to do so, or

(b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

(c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.

29. The work carried out by Customconstruction and Wrigley was “high risk construction work” within the meaning of cl 291 of the WHS Regulation. Duty holders were required to prepare a Safe Work Method Statement (SWMS) for the work that specified: hazards relating to the high-risk construction work; risks to health and safety associated with those hazards; the measures to be implemented to control the risks, and how the control measures are to be implemented, monitored and reviewed.

30. Prior to the incident SafeWork NSW had published the Managing the Risk of Falls Code of Practice, August 2019 (the Code). The Code was published and available to Customconstruction and Wrigley prior to the incident. The Code relevantly provides:

31. The WHS Regulation requires duty holders to work through the hierarchy of controls to choose the control that most effectively eliminates or minimises the risk in the circumstances. This may involve a single control measure or a combination of two or more different controls;

32. A fall prevention device (for example, a secure fence, work platform or cover) must be used to provide and maintain a safe system of work where persons are working near and around holes, penetrations and openings through which a person could fall, if it is reasonably practicable to do so;

33. Guardrails may be used to provide effective fall prevention around openings in floor and roof structures;

34. Fall arrest systems, such as individual fall arrest systems (including harnesses), are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use a fall prevention device or work positioning system or if these higher-level controls might not be fully effective in preventing a fall.

35. Prior to the incident SafeWork Australia had published the Safe Work on Roofs Information Sheet, January 2016. The Information Sheet was published and was available to Customconstruction and Wrigley prior to the incident. The Information Sheet relevantly provided:

36. Falls from height are the major cause of death and injury when working on roofs;

37. Hazards to consider in managing fall risks include skylights, holes, vents and trip hazards;

38. Workers such as electricians, plumbers, pest control operators, and installers of roof aerials, solar panels and air-conditioning systems can trip and fall on roofs, through roofs and openings or while accessing or exiting roof areas;

39. Falls from even low heights can leave workers with permanent and debilitating injuries such as fractures, spinal cord injuries, concussion and brain damage. The risk of serious injury or death from a fall increases significantly as working heights increase;

40. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls;

41. Protection must be provided if there is a risk of falling through the roof and work is being done on the top of the roof. Control measures to prevent injury from work on roofs include using barriers such as guard rails or covers that are secured and labelled with a warning.

42. Prior to the incident, SafeWork Australia had published the Guide to Scaffold Inspection and Maintenance, July 2014. The Guide was published and available to Customconstruction and Wrigley prior to the incident. The Guide relevantly provided:

43. The scaffold and its supporting structure must be inspected by a competent person:

(a) Before the scaffold is used after repairs; (b) At least every 30 days.

Systems of work prior to the incident

33. The work required to be undertaken on the Site was “high risk construction work” within the meaning of the WHS Regulation because it involved a risk of a person falling more than 2 metres in height.

34. Prior to the Incident, safe access to the roof was provided by the scaffold that had been installed on 4 May 2022. Between 4 May 2022 and 25 July 2022, the scaffold was altered by Customconstruction workers.

35. On the day of the incident, Customconstruction held on-site meetings with workers, including the Wrigley workers. The fact that the roof was dewy and might be slippery was discussed.

36. At the time of the incident, neither Customconstruction nor Wrigley had a documented SWMS for the work at the Site.

37. Customconstruction had a general SWMS which identified the risk of physical injury and death from persons falling from heights. Workers at the site, including Mr Hoskins, had not been trained in that general SWMS.

38. At the time of the incident, neither Customconstruction nor Wrigley had documented site-specific policies or procedures regarding working at heights.

39. Neither Customconstruction nor Wrigley had a system in place for the regular assessment of the condition of the scaffold to ensure that no components were missing.

40. Neither Customconstruction nor Wrigley prevented workers from walking on the plank or accessing the scaffold, which had missing components.

Steps taken after the incident

41. After the incident SafeWork issued prohibition and improvement notices to Customconstruction in relation to the risk that gave rise to the incident.

42. Customconstruction took the following steps after the incident:

43. Developing a formal work health and safety plan for the site.

44. Preparing a site-specific SWMS and obtaining SWMSs from subcontractors.

45. Arranging for employees to attend working at heights training.

46. Undertaking an audit of safe work practices.

47. Holding and documenting formal induction processes for all staff and subcontractors.

48. Ensuring that tampering with scaffolding is strictly prohibited.

49. Implementing a safety rail system on the second storey of the site.

50. Removing the plank between the scaffold and the roof.

51. Organising for a qualified scaffolder to rectify the scaffold.

Evidence for the Defendant

43. Mr Samuel Pollnow affirmed an affidavit on 10 March 2026 (DX 1 and DX 2). Mr Pollnow is a director of Customconstruction.

44. Mr Pollnow set out his responsibilities as a director of Customconstruction, including:

45. Overseeing projects and conducting site visits.

46. Meeting with clients, observing job progression, assisting in the planning and co-ordination of the next phase of works, and consulting with the Customconstruction site supervisor and sub-contractors on site.

47. Performing administrative work.

48. Quoting for new projects.

49. Customconstruction is a small business that specialises in building residential homes. Mr Pollnow set out the types of projects that Customconstruction does.

50. Customconstruction employs seven people, including Mr Pollnow. All the employees are carpenters by trade. Mr Pollnow explained that Customconstruction recruits apprentices to develop their carpentry skills.

Statement of regret

47. Mr Pollnow said that Customconstruction is sincerely remorseful for failing to comply with its statutory work health and safety duty and for the harm caused to Mr Hoskins.

48. Mr Pollnow acknowledged that Customconstruction failed to take reasonably practicable measures to eliminate, or alternatively minimise, the exposure to the risk.

49. On behalf of Customconstruction Mr Pollnow apologised to the community and the court for this failure. He explained that Customconstruction is committed to monitoring and improving its safety performance and continues to make this a central focus of its operations.

Work health and safety systems before the Incident

50. Prior to commencing work at the site, Customconstruction had developed and implemented the following work health and safety systems.

Site Inductions

51. Customconstruction held site inductions for Customconstruction employees and sub-contractors. This involved taking them through the site and discussing the tasks they were to perform. Hazards and risks that were relevant to work activities were identified, including any hazards or risks that may lead to falls from height.

On-Site discussions

52. Before carrying out any new work that was high risk and/or potentially dangerous, such as working at height, Customconstruction would arrange a meeting on-site to discuss how to perform work safely. At the site this included the roofing team from Wrigley accessing the roof using the scaffold. Either Mr Pollnow or the site foreman showed the workers who performed this work the safe access points on or off the scaffold, as well as alternative access points such as ladders.

53. During these discussions if any outstanding risk, issue or hazard was identified and brought to Mr Pollnow’s attention he would take immediate steps to fix it. Mr Pollnow told workers during these discussions that if they saw a problem or felt uncomfortable performing a task, they should raise that with him, the site foreman or their supervisor, and not perform the work until the matter had been looked at and their concerns were addressed.

Site Inspections

54. Mr Pollnow explained that he or the site foreman regularly inspected the site. This involved walking around the site. The purpose of these inspections was to assess the progress of work and identify any safety issues.

55. Mr Pollnow set out examples of safety issues that he checked on his site inspections. This included ensuring workers were wearing PPE. Customconstruction stocked PPE in a shed on site.

56. Mr Pollnow never observed or heard about any workers at the site climbing up or down the outside of the scaffold. During the site inspections he told workers to only access the roof from the scaffold and ladders and not to take short-cuts.

Consultation with contractors

57. When a subcontractor came on site for the first time, Mr Pollnow or the site foreman spoke with the contractor and consulted with them before the work commenced. Safety concerns, the location of work, and whether there were safe access or safe work platforms or work areas were discussed. If the subcontractor was going to work on the roof or from the scaffold, safe access to the roof and use of scaffold and ladders would be discussed.

One-on-one meetings

58. Mr Pollnow arranged informal and ad hoc one-on-one catch-ups with team members, particularly apprentices, where specific details relating to their role were discussed. This included any safety concerns.

Reporting procedures

59. A site foreman was present all day at each Customconstruction site. The site foreman oversaw work done by Customconstruction and its subcontractors. Customconstruction employees would report health and safety matters to the site foreman and the site foreman would report those matters to Mr Pollnow.

Licensed scaffolders and on-the-job training

60. Customconstruction's practice was to engage specialist sub-contractors to erect and dismantle the scaffold on site. Customconstruction engaged Websters to undertake the task of erecting the scaffold at the site. Websters completed the scaffold on 4 May 2022.

61. Once the scaffold was erected by Websters at the site, Mr James Webster from Websters provided Mr Pollnow with on-the-job training on the proper use of the scaffold. This training was in the form of a walkthrough of the scaffold. Mr Webster showed Mr Pollnow the location of the safe entry and exit points of the scaffold, including the location and use of ladders to access different levels of the scaffold.

62. Following this training with Mr Webster, Mr Pollnow delivered the training to Customconstruction employees and workers of the sub-contractors at the site. Mr Pollnow continued to provide this training to any new sub-contractor that joined the site.

Safe Work Method Statement

63. Customconstruction had a SWMS that addressed the general controls required for managing falls from height, including the use of scaffolding. Mr Pollnow took Customconstruction employees through the SWMS verbally. The SWMS was separate to the one that sub-contractors had for their own work.

Work health and safety systems after the Incident

Immediate improvements made at the Site

64. Customconstruction took the following immediate steps:

65. implementing a safety rail system on the second story of the extension at the site;

66. removing the plank between the scaffold and the roof; and

67. organising for Websters, a qualified scaffolder, to rectify the scaffold.

68. Mr Pollnow and his wife also arranged for cooked meals to be delivered to Mr Hoskins while he was in hospital. Mr Pollnow sent regular WhatsApp messages to Mr Hoskins to check in on his health following the Incident.

Additional improvements made after the Incident

66. Customconstruction has invested in ensuring that its work health and safety systems are comprehensive and effective in eliminating safety risks at its projects.

67. Additional safety measures implemented by Customconstruction since the Incident include:

68. Developing a formal work health and safety plan for the site.

69. Preparing a site-specific SWMS for the site, which states that:

(a) “Scaffolding must be erected by licensed scaffold subcontractor”; and (b) “Certified scaffold is not to be altered/removed by persons other than qualified scaffolders”.

3. Implementing a policy that Customconstruction must obtain a SWMS from all sub-contractors who are carrying out high risk work and take all staff and sub-contractors through this prior to commencing work.
4. Arranging for Customconstruction employees to attend a one day “Working at Heights” training course on 13 March 2023.
5. Implementing a policy that tampering with the scaffold is strictly prohibited and that only a licensed scaffolding company can erect, modify or dismantle scaffolding if required. Mr Pollnow regularly communicates this policy as a direction to workers on site.
6. Printing and placing signage on the scaffold at Customconstruction sites that directs workers to safe access points.
7. Entering into an agreement with HazardCo Australia, an electronic based application for work health and safety systems.
8. Entering into an agreement with BuildPass, which is Al-powered software that streamlines operations, including in respect of work health and safety systems.
9. Regularly holding and documenting toolbox talks prior to completing tasks, which are recorded through BuildPass.
10. Undertaking an audit of safe work practices and uplifting and documenting policies and processes.
11. Installing a noticeboard at each site with a QR code for all workers to sign in to BuildPass before commencing work each day. This requires workers to take certain steps before being allowed to commence on site.
12. Holding formal induction processes for all staff and subcontractors, and documenting these through BuildPass.

HazardCo and Buildpass

68. Mr Pollnow set out how Customconstruction used HazardCo and now uses BuildPass to assist with managing its work health and safety systems.

Compliance history and cooperation with SafeWork

69. Customconstruction had never been prosecuted for breaching its work health and safety duty prior to the present proceedings.

70. Customconstruction cooperated with SafeWork during its investigation and complied with the statutory notices issued by SafeWork.

Good corporate citizen

71. Mr Pollnow described his engagement with local community sporting clubs. He also said that he regularly speaks with other builders in his local area about Customconstruction’s safety protocols and the lessons that Customconstruction has learned.

Consideration

72. 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

73. 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].

74. 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].

75. 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.”

76. 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].

77. 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.

78. 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.

79. 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.”

80. 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.”

81. 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.”

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

83. Customconstruction ought to have foreseen the risk. It should have known of the risk by reason of the guidance material.

84. There was a significant likelihood of the risk occurring.

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

86. There were steps available to eliminate or minimise the risk.

87. These was no great burden or inconvenience for those steps to be implemented.

88. The harm done to Mr Hoskins was very serious.

89. The maximum penalty for the offence is a fine of $1,860,843, which reflects the legislature’s view of the seriousness of the offence.

90. I find that the level of culpability of Customconstruction is in the mid range.

Deterrence

84. 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]. Many decisions in this court have lamented the prevalence of falls arising from roof construction: SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144 at [1].

85. The penalty must reflect the need for specific deterrence. Customconstruction is still conducting a business. Its operations involve conducting residential construction work and the continuing engagement of workers and subcontractors.

Aggravating Factor

86. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. A submission was put by counsel for Customconstruction that the aggravating factor was not present, because the injury was not caused by the offence. I reject this submission.

87. Counsel for SafeWork submitted to the contrary, pointing out that the plea of guilty included acceptance of all of the particulars in par 21 of the Amended Summons, and of par 23 of the Amended Summons alleging that the serious injuries suffered were a manifestation of the risk. I accept those submissions.

Mitigating Factors

88. Customconstruction has no previous convictions: s 21A(3)(e) CSP Act.

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

90. Customconstruction is unlikely to re-offend: s 21A(3)(g) CSP Act.

91. Customconstruction 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.

92. Customconstruction 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 Hoskins was caused by its actions.

93. Customconstruction 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 Customconstruction a 25% discount for an early plea.

94. Customconstruction 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.

Parity

95. Wrigley was also prosecuted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident in which Mr Hoskins was injured: SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434.

96. Where two or more offenders are involved in the same criminal conduct or enterprise, the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter, including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

97. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

98. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

99. It is appropriate for the court to consider the respective contributions of Wrigley and Customconstruction. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW *(*Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority *(*Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

100. I find that Customconstruction bears approximately equal culpability with Wrigley. It is true that Mr Hoskins was an employee of Wrigley, however, Customconstruction had overall control of the site and was the entity which altered the scaffold. The fine imposed on Wrigley was $300,000 less 25% discount for the guilty plea, resulting in a fine of $225,000. The appropriate “full value” fine for Customconstruction will be less. Unlike Wrigley (which was in liquidation), Customconstruction actively participated in the sentence hearing and presented evidence of mitigating factors which were absent in the Wrigley decision.

Capacity to Pay a Fine

101. 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.

102. 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.”

103. Mr Pollnow’s evidence establishes that the defendant is not in a strong financial position. Two affidavits by an accountant Mr Martin (DX 3 and DX 4) annex financial statements to back this up. Unlike many cases where a defendant puts a few selected documents before the court, which do not tell the full story and which raise more questions than they answer, Customconstruction has put its cards on the table.

104. Further, Mr Martin has completed a “Penalty Feasibility Review”, which states that the company could afford to pay a fine of $102,000 by instalments over 12 months. I have no power to order payment of a fine by instalments, as that is a matter for the Registrar. I would normally not place much stock in the Review, as Mr Martin provides no reasons or methodology for his conclusion. However, Mr Martin was not required for cross examination, so I do not see any reason not to take this unchallenged opinion at face value.

105. I will reduce the appropriate fine (the level of which I have indicated in my orders), because of proven reduced capacity to pay, and because a “full value” fine would stultify the defendant’s business.

Costs

106. The usual order upon a conviction being recorded would be for the defendant to pay the costs of the prosecutor. However, there are the reserved costs of the interlocutory application to take into account: SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148. I held the view then, as I do now, that the prosecutor ought to pay those reserved costs. The extensive amendments to the Summons were in no way the fault of the defendant. The prosecutor sought and was granted an indulgence, and ought to pay the costs of obtaining the indulgence. It was only in May 2025, over 10 months after the Summons was initially filed, that SafeWork produced a proper pleading. Both sides wasted time and money before then. It would be unjust to require the defendant to pay all of, or even part of, the costs of the proceedings.

107. The order I will make reflects those considerations. Each party must bear their own costs of the proceedings, including reserved costs. I see no point in ordering costs both ways and potentially causing the parties to spend more money on lawyers in having two lots of costs assessed.

Penalty

108. My orders are:

109. Customconstruction Pty Ltd is convicted.

110. The appropriate fine is $240,000 less 25% to reflect the plea of guilty, further reduced to take account of capacity to pay.

111. Order Customconstruction Pty Ltd to pay a fine of $100,000.

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

113. Order each party to pay its own costs of the proceedings, including the reserved costs.

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