SafeWork NSW v Perry's Roofing Pty Ltd

SafeWork NSW v Perry's Roofing Pty Ltd - [2022] NSWDC 261 - NSWDC 2022 case summary — Zoe

[9]

Engagement of Works

Procare sought three quotes to replace the damaged roof. Riverwall tendered and was eventually appointed by the insurer to replace three roofs at the site. Its tender recorded that Riverwall would oversee the project and supervise it.
On 21 December 2018 Procare contacted Riverwall requesting "Make Safe" works to fix the damage at the site.
On 21 December 2018 Mr Dedes attended the site and conducted a visual inspection of the internal damage to the roof.
On 21 December 2018 Riverwall requested Perry's Roofing to attend the site to do an evaluation of the external damage and provide a quote to repair or replace the roof.
Perry's Roofing submitted a quote to Riverwall dated 21 December 2018 for $212,965.50 to replace the hail-damaged asbestos roof.
Once the "Make Safe" works were completed, Procare conducted a tender process to replace the roof.
Riverwall submitted a Tender to Procare dated 4 January 2019 to carry out the re-instatement of the hail-damaged roof and associated works in accordance with its site inspection for a total amount of $268,705.80.
The quote already obtained from Perry's Roofing was incorporated into Riverwall's Tender.
Procare subsequently requested Riverwall to provide a roof report. Riverwall engaged Perry's Roofing to attend the site for this purpose.
On 15 January 2019 Perry's Roofing provided Riverwall with a Roof Report which had annexed several photographs of the damaged roof. The Roof Report was then provided to Procare.
Mr Dedes prepared Riverwall's Approved Scope of Works document dated 21 January 2019.
Riverwall then prepared for the works to be completed. Mr Dedes, on behalf of Riverwall, prepared a Project Plan document for the works and obtained copies of the SafeWork NSW permits and licences of Perry's Roofing, as well as the Perry's Roofing Safe Work Method Statement (SWMS).
Riverwall gave Perry's Roofing a Work Order No. 9735 to complete the works described in the Perry's Roofing's quote. The works were to commence from midday on 31 January 2019.
Perry's Roofing then subcontracted Prime Metal to supply labour to remove and replace the roof at the site. This engagement was done via a text message sent from Mr Perry to Mr Holloway on 5 February 2019.
Prime Metal was told by Mr Perry to invoice HiVis Boys for the work done at the site.

[12]

The Incident

On Friday, 8 February 2019, Prime Metal started work at the site. Mr Holloway started the job on that day and had 10 people working on the roof of the warehouse, including Mr White and Mr Higham.
On Saturday, 9 February 2019, there were 20 workers replacing asbestos roof sheeting with new roof sheets.
On Sunday, 10 February 2019, work continued on the roof of the warehouse.
On Monday, 11 February 2019, there were seven workers engaged by Prime Metal performing roofing tasks on the roof.
On the afternoon of 11 February 2019, as the workers were finishing up on the roof, Mr White asked Mr Holloway and another Prime Metal worker, Mr Troy Irwin, if there was any other work that they could undertake prior to finishing for the day. Mr Irwin suggested screwing off or loosening the bolts of the handrails, so that they would be ready to be taken down the next day.
There is no evidence that Mr Perry, Mr McAskill or anyone from Perry's Roofing were informed that it was proposed that Prime Metal workers were going to commence the task of removing the components of the edge protection.
Mr Higham and Mr White then commenced to remove the metal handrails of the edge protection on the warehouse roof.
The two men were standing on the roof. Mr Higham saw Mr White slide the top rail off towards the end of the roof where the power lines were and said to Mr White, "Slide it back the other way so you're not cantilevering it off the side of the roof".
Mr White said, "It'll be ok" and Mr Higham replied, "Whatever". Mr Higham then began to slide the bottom rail out away from the power lines.
As Mr White slid the handrail out Mr Higham saw that the handrail was getting closer to the power lines and he said, "Stop, stop, the power lines". Mr White looked over to the end of the handrail. Mr Higham saw that it was very close to the power lines. Mr Higham then saw a white light appear between the power line and the handrail. He said it looked like the handrail was sucked towards the power lines. The handrail and the power lines connected.
Mr White had both hands on the handrail and began shaking and screaming and after a few seconds he went stiff and fell on his back, still holding the handrail in both hands with it resting on his stomach and the other end resting on the power line.
Mr Higham was approximately two metres away when Mr White fell on his back. He ran over and tried to kick the handrail out of Mr White's hands with his right leg. He heard a loud explosion and received flash burns to his legs which forced him back. He saw flames coming off Mr White's chest to about 50cm in height.
A later examination showed burns on the handrail and also on Mr White's body as the handrail was lying across his stomach area. There were burn marks on the roof where Mr White had stood. Mr White died on the roof.
Fire and Rescue NSW contacted Endeavour Energy who attended the site and isolated the power line.
Mr Higham suffered serious partial thickness burns to both legs and spent two weeks in Concord Hospital. He returned to hospital twice weekly for a change of dressing and was regularly seeing a psychiatrist to deal with the trauma of the incident.

[13]

Riverwall

The Scope of Works indicated in the General Notes that services were required to be isolated for a safe working space. It annexed photographs which showed the power lines at the rear of the warehouse.
At the time of the incident Riverwall had in place a Project Plan that included site-specific work health and safety information for the site. Riverwall's WHS Manual required that a subcontractor's SWMS be site-specific. The Project Plan stated that Riverwall was responsible for risks related to its work and also for those specified under its responsibilities as a principal contractor under the Work Health and Safety Regulation 2017 (NSW) (the Regulation). It stated that subcontractors must provide Riverwall as principal contractor with a copy of their SWMS for high risk construction work activities.
The Project Plan specified that the Construction Manager (which was Mr Dedes) was to "inspect the site prior to work commencement" and to "record and assess site specific risk and propose additional site-specific controls related to the project".
The Project Plan did not contain any reference to the existence or risk of power lines at the site.
Endeavour Energy did not receive a request for a quote from Riverwall to isolate the power to the power lines at the rear of the warehouse.
Mr Dedes requested Perry's Roofing to complete a site-specific SWMS for the re-roofing of the building.
On 7 February 2019, Mr Dedes obtained the SWMS from Perry's Roofing titled "Asbestos re-roofing" and conducted a review of the SWMS to check that it had been signed by the relevant workers and that it was site-specific.
The SWMS identified the potential hazard of electrocution during the task of laying blankets, roof sheets and flashing. It specified the control measure of ensuring that leads and tools were tagged and suspended off the ground.
The SWMS did not refer at all to the power lines at the site.
The "Construction Work Site Checklist" against which the SWMS was checked was completed by Mr Dedes on 9 February 2019, but it did not mention power lines at all.
Riverwall did not identify the risk of power lines at the site.
No changes to the SWMS were requested by Mr Dedes.
Mr Dedes conducted site inductions for some of the workers. However, Mr Dedes did not raise at those inductions the risk associated with electricity or the existence of the power lines.
Toolbox talks were conducted by Mr Dedes. However, Mr Dedes did not raise at those toolbox talks the risk associated with electricity or the existence of the power lines.
Riverwall had engaged Perry's Roofing to complete roofing repairs on other jobs in the months prior to the incident on 11 February 2019.
On some of those jobs Perry's Roofing had notified Riverwall that overhead power lines had been identified as a hazard.
On those occasions Riverwall made the necessary arrangements to have tiger tails installed on the power lines or to have the power lines de-energised. Tiger tails are a useful indicator of the presence of power lines. However, they do not protect a worker from the risk of electrocution or electric shock.

[14]

Mr Dedes

Mr Dedes had been employed by Riverwall in the period 2009-2010 and from 2014 to the date of the incident.
Mr Dedes had over 30 years experience in the construction industry and held the following certificates: 1. Builders Business Management Course (1993). 2. Elevating Work Platform Association Yellow Card (2007). 3. OHS General Induction in Construction Work in New South Wales (2008). 4. Certificate IV in Building and Construction (Building) (2012). 5. Diploma of Building and Construction (Building) (2012). 6. Applied First Aid.
Mr Dedes' role as Riverwall's Construction Manager was to manage the logistics for the works. This included coordinating with the insurer, insured and contractors to ensure the construction work was completed in accordance with the approved Scope of Works.
Mr Dedes attended the site daily to ensure work was progressing, to provide progress reports and photographs to the insurer and to ensure the factory was kept secure at the end of each day.
On 21 December 2018 Mr Dedes visited the site to conduct a visual inspection of the internal damage to the roof of the building as part of the "Make Safe" works. During the inspection, Mr Dedes identified the need to contract a hygienist from Enviro-Net Australia Pty Ltd, an asbestos contractor to monitor the asbestos levels and remove the asbestos from inside the warehouse. Mr Dedes requested Perry's Roofing to attend the site to do an evaluation of the roof.
On 9 February 2019 Mr Dedes completed a Construction Work Site Checklist for the internal factory.
On the same date Mr Dedes asked workers on site to sign a "Record of a Toolbox Talk". However, there was no toolbox talk held or any discussion about hazards on site.
On 8 February 2019, during one of Mr Dedes' visits at the site, he told Mr Holloway that a boom lift was too close to the power lines at the front of the building and that the boom lift needed to be moved. During that discussion, Mr Irving said to Mr Dedes: Mr Irving: "You know the power lines out the back are dangerously close, like really close to the building". Mr Dedes: "I don't recall power lines out the back". Mr Irving: "Yeah, they are out the back and they are pretty close to the building". Mr Dedes: "Oh really, just don't go near them".
The conversation occurred at the left side of the site with Mr Daniel Te Riini, another worker of Prime Metal. Mr Te Riini overheard some of the above conversation and recalled Mr Dedes saying, "Don't worry about it, just don't touch them".
Mr McKenzie was also present on site and heard Mr Irving raise concerns to Mr Dedes about the power lines being too close and that they were afraid to take the steel barge off the end. Mr McKenzie recalled Mr Dedes' response was, "Just don't go near them".
Mr Dedes was in a position of authority to rectify safety risks present on site.
On one occasion prior to the incident, while at the site, Mr Perry observed that an energised crane rail of 200,000 volts was about a metre away from where workers would be situated on the roof while undertaking the works. Mr Perry informed Mr Dedes of his concern and said that an electrician should be called to de-energise the crane rail. Mr Dedes agreed.
As Riverwall was the principal contractor, Mr Dedes organised for an electrician to remove the risk of electrocution relating to the crane rail before work commenced.
Mr Dedes was at the site on 7, 9 and 10 February 2019 and submitted progress photos to another Riverwall employee. The power lines were clearly visible in the background of those photographs. However, Mr Dedes stated that he did not observe the power lines running parallel to the rear of the building at the site.

[15]

Perry's Roofing

Mr Perry's qualifications included metal roofing, slate roofing, tile roofing, a handrails ticket and a scaffolding ticket. Perry's Roofing employs six workers.
Perry's Roofing was responsible for replacing the roof. It carried out safety inspections at the site and prepared the SWMS for the roof replacement.
On every job Mr Perry got on the roof to check for safety hazards.
Perry's Roofing owned the edge protection and was responsible for its installation around the perimeter of the roof.
Perry's Roofing arranged for a scissor lift and for a crane to be used on site and provided the new roofing material for the building.
Perry's Roofing engaged Prime Metal to the do the majority of the roofing work and Mr Perry, on behalf of Perry's Roofing, had responsibility for Perry's Roofing and HiVis Boys workers. This required him to identify site-specific hazards and risks and provide supervision.
On 2 February 2019, prior to the works commencing, Mr Perry attended an initial meeting at the site with Mr Dedes, Mr Holloway, Mr Marmont and Mr McAskill to discuss how the work was to be safely performed. Mr Dedes conducted this meeting.
Perry's Roofing did not verify that Riverwall had conducted a site-specific risk assessment that: 1. Included an actual assessment of the height of the power lines and the distance of the power lines from the roof at the site. 2. Identified the hazards and risks involved in the task of erecting and dismantling edge protection on the roof at the site, in particular, a risk assessment which identified the risk of steel handrails coming into contact with, or in close proximity to, power lines at the site. 3. Identified the distance between the installed edge protection and the power lines.
Perry's Roofing did not verify that Riverwall had developed and implemented a safe work procedure for the task of erecting and dismantling edge protection on the roof, that required Riverwall to make arrangements for the power lines to be de-energised while the task was being undertaken.
On behalf of Perry's Roofing, Mr Perry prepared the SWMS for "Asbestos re- roofing" dated 4 February 2019, which was submitted to Riverwall on 7 February 2019.
The SWMS did not include the installation, maintenance and removal of perimeter guardrails at the site, identify the hazards and risks associated with the presence of the power lines and their proximity to the site, describe the control measures to address the hazards and risks, or how these measures were to be implemented, monitored or reviewed.
The SWMS was signed by Mr White and Mr Higham.
Mr Perry first observed the power lines at the rear of the building on the first occasion that he accessed the roof of the building on 8 February 2019. He formed the view that the power lines were several metres away from the roof and did not consider the proximity of the power lines to the edge of the roof to be a hazard.
Mr Perry accessed the roof again on the mornings of 9 February and 11 February 2019 to observe the progress of the job and whether it was being completed correctly and safely, and to observe if there had been any new or deteriorating hazards. Mr Perry did not consider that there were any hazards on these occasions.

[16]

Prime Metal

Prime Metal did not submit a quote for the job, nor did it order materials or supply any personal protection equipment.
All work at the site was done at the direction of Perry's Roofing and it was Perry's Roofing who informed Prime Metal what work was to be done.
Prime Metal did not have any safety system in place in relation to working near the power lines. For the work at the site, Prime Metal relied on Perry's Roofing's SWMS and its own visual assessment of the site.
Prior to starting the job, Mr Holloway and Mr Marmont attended the site with Mr Perry who said what he wanted done and how to complete it. Neither Mr Holloway nor Mr Marmont identified the power lines at the rear of the building to be a risk as the power lines were not on the site and doing the work did not involve the power lines.
On Friday, 8 February 2019, both Mr Holloway and Mr Marmont saw the power lines at the rear of the site but did not consider them to be a risk. Mr Holloway and Mr Marmont had been informed that workers had concerns about the power lines.
On 9 or 10 February 2019 Mr Irving informed Mr Holloway that he had expressed his concerns to Mr Dedes about the proximity of the power lines and that Mr Dedes had responded: "Don't worry about it, it's all good".
On Sunday, 10 February 2019, Mr Holloway noticed the power lines when he was on the roof but considered that they were low and "below the building".
Prime Metal had between 7 and 19 contractors working at the site over the course of the project. On the day of the incident, all seven workers at the site were engaged by Prime Metal.
Mr White had started with Prime Metal on 17 December 2018 as a labourer. Prime Metal understood that Mr White had previous experience with another roofing company. Mr White was not directly employed by Prime Metal but the arrangement was that Prime Metal would pay Mr White upon receipt of invoice from Mr White. Mr White was told to do general labour tasks and he was supervised by Prime Metal. Mr White carried out work at the site from Friday, 9 February to Monday, 11 February 2019.
Mr Higham had been carrying out work for Prime Metal for two days prior to the incident. Mr Higham was not directly employed by Prime Metal but the arrangement was that Prime Metal would pay Mr Higham upon receipt of an invoice from Mr Higham. Mr Higham was a carpenter by trade and had completed training in general construction and working at heights. He had previous experience in working on roofs and repairing metal roofing.

[17]

Relevant Guidance Material

Clause 166(1) of the Regulation provides that a person conducting a business or undertaking (PCBU) at a workplace must ensure, so far as is reasonably practicable, that no person plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line.
Clause 166(2) of the Regulation provides that if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from any overhead or underground electric line, the PCBU at the workplace must ensure that: 1. A risk assessment is conducted in relation to the proposed work. 2. Control measures implemented are consistent with: 1. the risk assessment; and 2. if an electricity supply authority is responsible for the electric line, any requirements of the authority.
Clause 299(1) of the Regulation provides that a PCBU that carries out high risk construction work must, before such work commences, ensure that a SWMS for the proposed work is prepared or has already been prepared by another person.
Clause 291(k) of the Regulation provides that "high risk construction work" includes "work that is carried out on or near energised electrical installations".
The WorkCover NSW Code of Practice Work Near Overhead Power Lines dated July 2006 required a safe approach distance of three metres to be maintained from overhead power lines up to and including 132,000 volts. This Code of Practice was freely available on the SafeWork NSW website prior to the incident and provides practical guidance on risk management principles.
The WorkCover NSW Code of Practice Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 stipulates that a four metre distance should be maintained from power lines where metal is used. This Code of Practice was also freely available on the SafeWork NSW website prior to the incident.
Australian/New Zealand Standard AS/NZS 4994.2-2009 Temporary Edge Protection, Part 2: Roof Edge Protection - Installation and Dismantling (the Standard) required consideration of the proximity to power lines during planning of the work and during the development of the SWMS. The Standard also says that employers must ensure that workers possess sufficient knowledge and be given adequate training. The Standard points out that a person does not need to have direct contact with power lines to receive a fatal shock.
The WorkCover NSW Code of Practice Construction Work dated July 2014 provided general WHS guidance on what is required in SWMSs. The SafeWork Australia General Guide for Working in the Vicinity of Overhead and Underground Electric Lines dated 2014 cautions at p 2 that a close approach to energised conductors may allow a flashover or arc, a risk which increases as the line voltage increases.
The Australia Scaffolds User Manual for Roof Edge Protection says at par 7.5 that where edge protection is in close proximity to power lines, the handling of steel rods and other long metal items should be carried out in a manner that preserves the safe minimum distance of four meters.

[22]

Work Undertaken at the Site

Perry's Roofing was subcontracted by Riverwall to replace a damaged asbestos roof at the site. Mr Perry said that he understood that Riverwall would primarily be responsible for undertaking site-specific risk assessments, which would include undertaking risk assessments of any power lines in proximity to the site.
Operating on this basis ignores s 14 of the Act, which provides that a duty cannot be transferred to another person. It also ignores s 16 of the Act, which provides that more than one person can concurrently have the same duty, and that each duty holder must comply with the standard required by the Act, even if another duty holder has the same duty. Industrial companies cannot take this type of "hands off" approach, hoping that another company will take all the right measures. The primary standard enshrined in the Act is that companies must ensure the safety of workers.
In par 55 of DX 1 Mr Perry accepted that Perry's Roofing should have verified that Riverwall had conducted a site-specific risk assessment. In par 57 of DX 1 Mr Perry accepted that Perry's Roofing should have assessed the risks involved in the erection and dismantling of the edge protection on the roof of the site. In par 58 of DX 1 Mr Perry acknowledged that Perry's Roofing should have taken steps to make sure that Riverwall had arranged for the power lines to be de-energised prior to the roofing works being undertaken.
In par 67 of DX 1 Mr Perry accepted that Perry's Roofing should have included information as to the hazards and risks associated with the presence of power lines and their proximity to the roof, in the Perry's Roofing SWMS. He acknowledged that the SWMS should have included details of the control measures to be implemented in relation to the risk of materials being handled by workers coming into contact with, or in close proximity to, the overhead power lines.
Mr Perry gave evidence of measures taken since the incident and cooperation with the SafeWork NSW investigation. He expressed remorse and said that this was "a tragedy which was clearly preventable".

[24]

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. 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. 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."
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."
At [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 defendant's level of culpability are based upon the following: 1. Perry's Roofing knew of the risk posed generally by overheard power lines. In spite of the power lines at the site being clearly visible to anyone who looked (as per the photographs in PX 1, Tabs 5 and 6), absolutely no steps were taken to deal with such an obvious hazard. Further, there was ample clear guidance material directed to this particular risk. 2. The likelihood of the risk occurring was high. Young and relatively inexperienced workers were dismantling Perry's Roofing's own handrails while in close proximity to the power lines. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. All of the reasonably practicable measures which would have eliminated, or at least minimised, the risk should have been taken before any workers stepped onto the roof. 5. There was no great burden or inconvenience in these steps being implemented. 6. Two young labourers were put at risk of death or serious injury. Mr White died as a result of being electrocuted. Mr Higham suffered serious flash burns to both legs. 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. 8. Counsel for the defendant submitted (MFI 1, par 55) that while Perry's Roofing could not delegate its duty, there were other persons whose acts or omissions can be said to have contributed to the circumstances which gave rise to the risk. Counsel nominated Riverwall, Mr Dedes and Prime Metal. I accept this submission. Counsel for the defendant acknowledged that the reason for having regard to the acts or omissions of other parties was not to reduce the culpability of any one party in a proportionate way in an overall penalty, but to determine the real culpability of the defendant before the court. I accept that submission. 9. On the material put before the court on this sentence hearing, the acts or omissions of those three parties did contribute to the existence of the risk. I take that into account. Perry's Roofing is the first of the entities to come before the court for sentence. At this stage I am not engaged in considering parity of sentences.
I find that the level of culpability of Perry's Roofing is in the high range.

[30]

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 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 at [95] the Court of Criminal Appeal said: "Even if the fine imposed is lower than it would otherwise have been in the absence of evidence as to means, that will not preclude a substantial fine being imposed. That is because every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime".
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."
Mr Perry set out the financial position of Perry's Roofing in his affidavit (DX 1).
Mr Perry said that the business was "in a financially vulnerable position" because of a downturn in business arising from the pandemic, significant rainfall events in Sydney since October 2021 and his own emotional problems. Mr Perry summarised the financial position, and provided documents to demonstrate his figures, as follows: 1. The gross profit of the business has fallen from 13% in 2020 to 3% in 2022. 2. Sales have fallen from $11 million in 2019 to $3.6 million in 2022. 3. There has been a substantial increase in consultancy fees arising from the incident. 4. Borrowings have increased from $29,000 in 2018 to $278,000 in 2022. 5. The family farm was sold after his relationship broke down, and the proceeds of $350,000 were put into the business to keep it afloat. 6. Mr Perry has drawn on $100,000 of his superannuation and injected it into the business. 7. Public liability insurance premiums have increased from $7,000 in 2018 to more than $200,000 per year since the incident.
The financial statements of Perry's Roofing show: 1. A profit before income tax of $260,000 in 2019. 2. A profit before income tax of $162,000 in 2020. 3. A loss before income tax of $179,000 in 2021. 4. A loss before income tax of $527,000 in 2022.
Mr Perry said that the business did not have any substantial liquid assets which would enable it to pay a significant fine. In par 124 of DX 1 he said that if substantial fines are imposed by the court there is a significant potential that he would have to close the business, given the current economic climate. Even if the business was able to continue to trade, significant fines would delay Perry's Roofing from making upgrades to capital equipment.
There was no cross-examination of Mr Perry on his affidavit or in relation to the financial documents which form part of his affidavit.
Counsel for the prosecutor submitted that there was no suggestion that the company could not trade out of its financial difficulties. Counsel for the defendant submitted that Perry's Roofing had not deliberately got itself into its present financial state. It had remained in business to date by the sale of a family farm and the injection of capital from Mr Perry's superannuation and from retained earnings. I accept all of those submissions.
On the face of it, Perry's Roofing cannot continue to remain in business, let alone pay any sort of fine. It ran at a loss of half a million dollars last financial year. Nevertheless Mr Perry has continued to conduct the business and has no plans to close it down. I will moderate the fine which I would otherwise impose, but the egregious lack of any proper precautions being taken at the site in relation to an obvious risk, and the need for general and specific deterrence, mean that the fine must still be very high. As the Court of Criminal Appeal has said, the punishment must fit the crime and this court must have regard to the purposes of the sentencing legislation, including to denounce the conduct of the offender and to recognise the harm done to the community and the victims of the crime.

[31]

Victim Impact Statements

The defendant was convicted at the sentence hearing on 5 July 2022.
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 summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
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. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
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).
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. Members of a primary victim's immediate family include children and grandchildren of the deceased - s 26.
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. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.
Perry's Roofing was convicted at the Sentence Hearing on 5 July 2022. I propose to take the Victim Impact Statements in this case into account on punishment on the basis that they demonstrate that the harmful impact of the death of Mr White on family victims is an aspect of harm done to the community.
The court received the written Victim Impact Statements (PX 4) of: 1. Mrs Rosalia White, the mother of Mr Joel White. 2. Mr David White, the father of Mr Joel White. 3. Ms Cayla Kabourakis, the twin sister of Mr Joel White. 4. Ms Erin Marturano, the sister of Mr Joel White. 5. Ms Demi Kovacs, the partner of Mr Joel White.
The five family victims read their statements aloud to the court. It was heart rending to listen to each of these grief-stricken and shattered people read through their statements. Mr Perry was in court to see the devastating effect upon these family members of the breach of duty committed by Perry's Roofing. I only wish that every employer in New South Wales could be required to watch a video of the Victim Impact Statements in this case being read aloud in open court.
Mr Joel White was obviously a much-loved young man. He was humble, loyal and caring. He was a friend to everyone he knew. He was the life of every party.
The lives of the five family victims who read their Victim Impact Statements will never be the same. Joel will always be with them. Some common threads ran through the statements. All of the family victims are depressed, many are on medication and some have suicidal ideation. All have had medical assistance with their mental health, but there has been little improvement for any of the family victims. Their interpersonal relationships have been affected. Their ability to work has been affected, and in broad terms, their ability to enjoy life has been almost destroyed. It is hard to see any of them recovering to any significant degree. It has taken some years for this case to come to court. One can only hope that once this case, and the Sentence Hearing of other co-offenders, have finished, one small aspect of stress and grief will be concluded.
As I said to the family victims after the reading of their statements was concluded, they have through their statements paid tribute to Joel, and greatly assisted the court to understand the harmful impact of the death of Mr White on the family, partner and friends. I take this into account on punishment, as an aspect of harm done to the community, as required under the sentencing legislation.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (33 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (18)

Cited By (3)