Safework NSW v Landmark Roofing Pty Ltd

District Court of NSW|2020-07-31

Solicitors: SafeWork NSW (Prosecutor) Moray & Agnew (Defendant) File Number(s): 2019/83648

Background

At trial the parties presented an Agreed Statement of Facts (PX1). After reviewing the evidence, I made additional findings of fact which are set out in the primary judgment at pars [129]-[142].

Evidence for Landmark

Landmark relied upon the affidavit of Mr Dean Beacher sworn on 4 June 2020 (DX 4) and a supplementary affidavit of Mr Dean Beacher sworn on 30 July 2020 (DX 9). Mr Beacher has worked in the roofing industry for 20 years and has been the sole director of Landmark since its establishment in 2004. Mr Beacher has metal roofing and sheet metal work qualifications. He has undertaken training in Elevated Work Platforms, Height Safety, Working at Heights and Electrical Tool Tag and Repairs.

Statement of Remorse

In his affidavit Mr Beacher expressed deep regret for the death of Mr Asser. At par 31 Mr Beacher stated that the hardest thing he has ever done in his life was walking into the intensive care unit with his wife and meeting Mr Asser's mother and brother while Mr Asser was in a critical condition. The events of the day of the incident will stay with him forever.
Mr Beacher explained that his mental health has suffered significantly as a consequence of the tragic incident. He is no longer sure he will be able to continue to own and operate a roofing company into the future. He now second-guesses every single business decision he makes and experiences concentration difficulties when planning quotes for jobs. He struggles to walk into his office each day as it is the location where he received the news of what happened to Mr Asser.

Safety Record before the Incident

Landmark has completed an average of 70 jobs per year for the last 16 years. These jobs have included roof installation projects and replacement roofing work, as well as emergency storm damage roof repairs. The majority of work undertaken by Landmark is the large-scale re-roofing of buildings in schools. Prior to the incident, Landmark had not been issued with any notice, sanction or infringement in relation to a work health and safety matter. This the first time Landmark has been before a court for a work health and safety matter.
Mr Beacher stated that he encouraged and enforced compliance with safety obligations. He said that Mr Asser had completed all the appropriate training in height safety and Elevated Work Platforms.

Actions taken since the Incident

Landmark cooperated fully with SafeWork NSW throughout its entire investigation of the fatal incident. Landmark responded to the relevant prohibition and improvement notices and supplied all requested information and documentation within the allocated timeframes. Mr Beacher personally participated in interviews with inspectors both on and after the day of the incident.
Since the incident, Landmark has increased consultation with its employees and increased the frequency of its work health and safety system reviews. In his affidavit, Mr Beacher detailed the following actions taken by Landmark to avoid another safety incident occurring: 1. Risks are properly assessed, and appropriate work methods are put in place. 2. All workers are properly inducted and trained in relation to the company's safe work method before they are permitted to commence work on any site. 3. All workers are aware of the availability of appropriate fall protection measures and the requirement that they are to be used in accordance with the applicable work method statement. 4. Less experienced workers are supervised at all times by appropriately trained, experienced and competent supervisors. 5. Regular health and safety toolbox talk meetings are held on site, which workers are required to attend. 6. A prestart/toolbox meeting book has been implemented. Workers have been trained to fill this out on all jobs. There are three copies. One copy is to be handed to the client to complement the applicable SWMS. The second copy is filed in Landmark's job folder. The third copy stays in the book for future reference. 7. Landmark's apprentices and employees have received external training in height safety and the use of elevated work platforms.

Charitable Works and Community Contribution

Landmark has actively contributed to local causes by: 1. providing ongoing financial and charitable support to the Immune Deficiencies Foundation Australia and the Special Children's Christmas Party Newcastle; 2. making monetary donations to PCYC Newcastle; 3. donating excess materials to local Men's Shed Associations; 4. donating time and labour of the company's employees to a charitable building project in Nelson Bay.
Landmark has sought to create employment opportunities for people who reside in the local area. In its 16 years of operation Landmark has employed a total of 24 apprentices. Some of these individuals came from difficult personal situations. Working at Landmark has provided them with the opportunity to acquire valuable skills and become professional roofing industry tradesmen. Landmark currently has eight employees (four apprentices, three tradesmen, and one office manager) and usually has two to six workers engaged via labour-hire arrangements.

Financial Position

The affidavits of Mr Beacher covered the financial position of Landmark. This matter is dealt with below in relation to capacity to pay.

Affidavit of Mr Dean Beacher 30 July 2020

In his supplementary affidavit, Mr Beacher annexes correspondence received by Landmark from the Australian Building and Construction Commission (ABCC) on 22 July 2020. He explains that Landmark has previously and is currently carrying out several Commonwealth-funded projects covered by the Code for the Tendering and Performance of Building Work 2016. Over the past four years, such work has made up 50% to 70% of Landmark's business.
Exhibit "DB-S1" to the supplementary affidavit is a letter dated 22 July 2020 from the ABCC referring to the recent prosecution of Landmark by SafeWork NSW. The letter says that if Landmark was a code covered entity when the contravention occurred, then the ABCC can investigate the matter. This involves requiring Landmark to outline measures taken or being taken to prevent future reoccurrence or requiring Landmark to show cause why a recommendation for "sanction or formal warning" should not be made by the ABCC to the Federal Attorney-General and the Minister for Industrial Relations.
Mr Beacher explains in his supplementary affidavit that if Landmark receives a sanction from the ABCC, it will no longer be able to tender for Commonwealth-funded building work. This is something he has concern about, as Landmark has had fewer opportunities for private sector work in the Hunter region over the past few years.

Character References

Character references were supplied by Mr Jake Scott (DX 5), Ms Jodie Calvert and Mr David Calvert (DX 6) and Mr Joshua Bradley (DX 7). Mr Asser's mother, Ms Maryann Bradley-Asser, also supplied a statement (DX 8) in addition to her Victim Impact Statement, which is referred to later in this judgment.
Mr Scott has been a mature age apprentice at Landmark since 2019, previously working as a labourer for Landmark in 2017 and 2018. He has known Mr and Mrs Beacher for a long period of time from other projects where he used to work as a sheet metal tradesman and machine operator. Mr Scott explained that he was made to feel very welcome by his employer and has enjoyed his time as an apprentice due to the exposure he has had to high-end jobs and new skills.
Mr Bradley is the oldest brother of Mr Asser. Mr Bradley said that he was part of open discussions with Mr Beacher and the Landmark team while his brother was in intensive care and he believes that Mr Beacher was very supportive. Mr Bradley explained that Mr Beacher has maintained contact with his mother following the incident, which has been a source of great comfort to the family. Mr Bradley believes that everyone involved, including Mr Beacher and his family, have been deeply impacted. Mr Bradley said he does not blame anyone for the incident and that knowing Mr Beacher's young family could be financially crippled would add to the grief already experienced.
Mr and Ms Calvert are the aunt and uncle of Mr Asser. Mr and Ms Calvert stated that Mr Beacher's support of his employees, Mr Asser's mother and the rest of Mr Asser's family, has been ongoing and greatly appreciated. Mr and Ms Calvert said that they know Mr Beacher has grieved along with the family and that they hold him in the highest regard.
Ms Maryann Bradley-Asser stated that Mr and Mrs Beacher both came to meet her and provide emotional support to her and her family at the hospital. Ms Bradley-Asser describes an event that Mr Beacher and workmates organised to celebrate what would have been Mr Asser's 21st birthday in November 2018. She was unable to attend but was very appreciative of what she described as a "[v]ery caring gesture on their part" to commemorate her son. Ms Bradley-Asser says that Mr Beacher has actively kept in touch with her over the course of the last two years and has been very supportive. She said she has never held any one person responsible for the tragic incident.

Consideration

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

Objective Seriousness of the Offence

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].
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].
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."
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].
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.
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. 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.
The Court of Criminal Appeal has examined the sentencing process with regard to the 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. His Honour Justice Basten at par 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."
Further at par 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."
At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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."
My findings about the offender's level of culpability are based upon the following: 1. The risk of a fall from height was obvious and was known to Landmark. The risk created by working near old brittle polycarbonate material was well-known to Landmark. 2. The risk was likely to occur. Mr Asser was an inexperienced apprentice who was working a considerable distance above the ground without being harnessed to the existing static line. 3. The potential consequences of the risk were grave, including serious injury or death. 4. There were available steps which could have eliminated or minimised the risk. There was an existing static line on the ridge of the roof. Both men on the roof were wearing harnesses. There were two ropes available to attach the harnesses to the static line. For unexplained reasons, one of those ropes was left in the utility at ground level. 5. There was no cost or inconvenience in the two workers being roped onto the static line. 6. The death of Mr Asser was a direct consequence of Landmark's breach of duty. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence.
I find that Landmark's level of culpability is in the high end of the mid range.

Deterrence

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. This is particularly so when the offence involves a fall from height, which is one of the most common scenarios to come before this court.
The penalty must reflect the need for specific deterrence. Landmark is still conducting a business in a high risk industry. Its operations involve the removal of existing roofing material, replacement with metal sheet roofing and the installation of metal sheet roofing on new construction projects. Landmark continues to engage workers, including apprentices, for these projects.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mr Asser died from the severe injuries that he sustained when he fell through the polycarbonate skylight sheeting.
Mr Asser was a vulnerable, young, inexperienced worker: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999. He was in the first year of his apprenticeship at the time of the incident.

Mitigating Factors

Landmark has no record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Landmark is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Landmark has been in business for 16 years.
Landmark is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Landmark has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. 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 accident occurred.
Landmark gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

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.
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."
At pars 24-25 of his first affidavit, Mr Beacher explained that Landmark's financial position has suffered a significant decline since 2018. Further losses are forecast over the next two years according to a financial report and a forecast prepared by Mr Hewitt, a Chartered Accountant - see Exhibit "DB-1" to the affidavit of Dean Beacher 4 June 2020. Mr Hewitt was informed that due to increased market competition, the impact of the COVID-19 pandemic, the lack of long term contracts and the need to tender for every contract, there was a $195,897 loss in 2019, as well as an additional $16,256 loss in 2020 thus far. Furthermore, he notes that Landmark experienced a decrease in sales from FY19-FY20 of 22.6%, dropping from $2,626,916 in 2018 to $1,318,349 in 2019 and then $1,020,540 in 2020. In his report, Mr Hewitt predicts that in the period from 1 June 2020 to 30 June 2022 there will be a further decline in sales similar to the 22.6% decrease experienced in the last financial year.
Mr Beacher did not provide any evidence or analysis to suggest that any factors relevant to the past drop in sales might continue into the future. The report of Mr Hewitt operated on the assumption that the percentage drop in sales for the past would continue at the same level for the next two years. Mr Hewitt was not asked to provide any expert evidence or analysis to justify the assumptions he was given as the foundation for his report.
The correspondence from the ABCC indicates that a sanction or warning may be imposed. The ABCC has required Landmark to show that measures have been taken or will be taken to prevent future reoccurrence. Landmark will be able to demonstrate that it has taken appropriate remedial measures, set out in par 11 above, to the satisfaction of Safework NSW. It may be that the ABCC is also appropriately satisfied. There was no definite evidence that there would be adverse financial consequences because of the ABCC correspondence.
The financial statements for Landmark for the period ended 15 May 2020 show that Landmark incurred legal fees of $23,759 in 2019 and $89,516 in 2020.
The balance sheet sets out the current liabilities. Landmark appears to have no bank debt. The sole non-current liability is shareholder loans of $71,360, which is up from $32,360 in 2019. There are no long term bank borrowings. As at 15 May 2020 Landmark had retained earnings of $246,742. This equity is owned by Mr Beacher who is the sole shareholder in Landmark. Mr Beacher and his wife are both employees of Landmark. Each is paid over $80,000 per annum as a wage, according to their tax returns.
The evidence shows that Landmark is a successful company of relatively modest size. It would seem to have the capacity to borrow funds to pay an appropriate fine. It may well be able to call upon capital from its owner Mr Beacher. There was no evidence about his personal financial position or his ability or willingness to contribute funds. There are substantial retained earnings in the company. Landmark has not satisfied the court that it has a reduced capacity to pay.
The seriousness of the offence and the need for general deterrence call for a substantial fine. However, Landmark has satisfied the court that it is a relatively small commercial enterprise and that it had a good safety record before the incident. I propose to moderate the fine which would otherwise be imposed.

Victim Impact Statements

Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a). By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family.
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. In the present case Victim Impact Statements from the mother (PX 11) and father (PX 10) of Mr Asser were admitted into evidence.
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1). In this regard the court offers its own sympathies to Ms Bradley-Asser and Mr Asser and the wider family on the tragic loss of their son, a fine young man who was highly regarded by all who knew him.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community - s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. The prosecutor submits that the Victim Impact Statements of Mr Asser's mother and father should be taken into account in setting the appropriate level of penalty in this matter. I determine that it is appropriate to take the statements into account.

Victim Impact Statement of Ms Maryann Bradley-Asser

A written Victim Impact Statement, signed by Ms Maryann Bradley-Asser and dated 10 June 2020, was placed before the court. Ms Bradley-Asser said that a "mother losing a son is one of the most difficult traumas that can ever be experienced". Brayden Asser was her youngest son. Ms Bradley-Asser said she works in the funeral industry and tried to resume work after about 10 weeks of her son's passing but could not keep working. It took approximately one year before she could return to work and she is now working three days a week.
Ms Bradley-Asser explained that the accident has had a ripple effect on her, her family, her son's friends, his colleagues and everyone who knew her son. Ms Bradley-Asser said that her life will never be the same but that she tries to put one foot in front of the other for the sake of her other two sons.

Victim Impact Statement of Mr Dale Francis Asser

A written Victim Impact Statement, signed by Mr Dale Francis Asser and dated 10 June 2020, was placed before the court. Mr Asser explained that witnessing his once bright, active son hooked up to machines keeping him alive before his tragic passing was very traumatic.
Mr Asser said he is extremely disappointed that neither Mr Beacher nor anyone else representing Landmark made any contact with him concerning the loss of his son. After his son's passing, Mr Asser has experienced a change in his emotional state and what were previously routine matters now quite quickly cause him to be upset and angry. Mr Asser has attended psychological counselling which has assisted him. He stated that the unimaginable loss of his son has left a tremendous void.

Work health and safety project order

The prosecutor applied for an order under s 238 of the Act that Landmark pay for the development and production of an animated education video by an external provider, which covers the incident involving Mr Asser, the failures of Landmark as found by this court, and what an appropriate safety system for undertaking roofing work looks like. I decline to make such an order. There was no evidence of the utility of such videos for the general industrial community. Further, the production of such videos, if worthwhile, should be undertaken by Safework NSW itself. Finally, this is not a case where some additional order needs to be made under s 238 to reinforce the obligations of this particular defendant. Landmark is not a recidivist; in fact it has a good safety record apart from this incident.
If Safework NSW wants to publicise the findings of the court and bring them to the attention of the general industrial community, a quicker and cheaper method might be to issue a press release summarising the important features of the case. This used to be done several years ago by the office of the relevant Minister, and it often resulted in mainstream publicity about work health and safety matters. Such press releases were often reported in trade journals, which was a quick, cheap and effective method of bringing the lessons from the case to the attention of a particular trade or industry.

Costs

There will be an order that Landmark is to pay the prosecutor's costs.

Penalty

My orders are: 1. Landmark Roofing Pty Ltd is convicted. 2. The Victim Impact Statements of Ms Maryann Bradley-Asser and Mr Dale Asser are taken into account. 3. Order Landmark Roofing Pty Ltd to pay a fine of $400,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order Landmark Roofing Pty Ltd to pay the prosecutor's costs.

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: 07 August 2020

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