SafeWork NSW v Perry's Roofing Pty Ltd

District Court of NSW|2022-07-05

cutor) C Magee (Defendant)

Solicitors: Department of Customer Service (Prosecutor) Holding Redlich (Defendant) File Number(s): 2021/00033275

Judgment

On 28 February 2019 at 16 Kelso Crescent, Moorebank (the site), the defendant was removing asbestos roof sheeting. Workers were stripping roof sheets and placing them in stacks of 10 to 25 sheets. A number of timber purlins broke due to excessive point loading from the stacks of roof sheets. Part of the roof structure collapsed and the roof sheets fell, damaging the wire safety mesh underneath the roof. Two workers fell through the roof and the wire safety mesh onto concrete four meters below. Another two workers were also injured.
Perry's Roofing Pty Ltd (Perry's Roofing) 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 Act) it failed to comply with that duty and thereby exposed Mr Daniel Thomas, Mr Daniel Te Riini, Mr Derick McKenzie and Mr Warren Irving to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.

The Risk

The risk described in par 14 of the Summons is as follows: "The risk was the risk of workers, in particular Mr Thomas, Mr Te Riini, Mr McKenzie and Mr Irving, suffering serious injury or death as a result of falling approximately 4 metres through the roof at the site."

Reasonably Practicable Measures

Paragraph 15 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Thomas, Mr Te Riini, Mr McKenzie and Mr Irving, 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 to eliminate, the risk: a) verify that Advanced had engaged an appropriately qualified person to undertake a structural inspection of the roof, which included an assessment of the: i. roof sheeting on the roof; ii. wire safety mesh; iii. timber purlins supporting the roof; iv. structural integrity of the roof; v. load bearing capacity of the roof; and/or b) prohibit workers from commencing the task of removing the roof sheeting until a structural inspection of the roof had been undertaken; and that the structural integrity of the timber purlins had been assessed, and load bearing capacity of the roof determined; and/or; c) develop, implement and enforce a safe work procedure or safe work method statement for the task of removing the roof sheeting which: i. identified the risk of the roof collapsing due to excessive point loading; and ii. specified that a structural inspection of the roof must be undertaken prior to commencing the task."

Background

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

Relevant Parties

Advanced Buildings (NSW) Pty Limited (Advanced Buildings) conducted a business or undertaking specialising in insurance reinstatement works.
Advanced Buildings was retained by an insurer to undertake roof reinstatement repairs at the site. The estimated cost of the works was $567,845.
Advanced Buildings engaged Perry's Roofing to undertake the roofing work at the site. Perry's Roofing conducted a business or undertaking involving residential and commercial roofing work, including asbestos removal. Mr Grant Perry was the sole director of Perry's Roofing. Perry's Roofing employed eight workers.
Perry's Roofing engaged Prime Metal Roofing Pty Limited (Prime Metal) to provide labour to assist in undertaking the task of the removal and replacement of the roof at the site. Prime Metal conducted a business or undertaking involving roofing works and providing labour hire to metal roofing companies. Mr Kieren Holloway and Mr Michael Marmont were the directors of Prime Metal. It has not traded since the incident.
HiVis Boys Pty Ltd (HiVis Boys) conducted a business or undertaking as a labour hire company. Ms Cassandra Perry was the director of HiVis Boys. Ms Perry is the sister of Mr Perry.

Workers

Mr Craig Walshaw was the site supervisor for Advanced Buildings.
Prime Metal engaged four subcontractors to assist with works on the site, namely Mr Derick McKenzie, Mr Daniel Te Riini, Mr Warren Irving and Mr Daniel McKee. Mr Holloway also assisted with the roofing works at the site.
Perry's Roofing engaged Mr William McAskill as a site supervisor for Perry's Roofing. Mr McAskill was employed by HiVis Boys. Mr McAskill was responsible for supervising Perry's Roofing and Prime Metal workers at the site at the time of the incident. Mr McAskill had over 35 years experience in the roofing industry.
Two employees of Perry's Roofing were on site at the time of the incident, being Mr Daniel Thomas and Mr Chris Markantanos. Mr Thomas was an 18 year old first year apprentice and Mr Markantanos was a 15 year old first year apprentice.

The Site

The site contained two industrial buildings. The buildings were known as "the front building" and "the rear building". The roofs on the buildings had been damaged by a hail storm that occurred in December 2018. The roofs had corrugated asbestos cement sheet roof cladding. The roofs needed to be replaced in order for the buildings to be reoccupied.
Advanced Buildings was the principal contractor at the site and was in control of the site.
Pursuant to the Scope of Works for the roof reinstatement repairs, Advanced Buildings was required to remove the asbestos cement roof sheeting on the buildings and replace them with Colorbond metal roof sheeting.
The front building was approximately 70 metres long and 23 metres wide. It had Colorbond walls and corrugated asbestos roof sheets.
There was steel safety mesh installed underneath the roof sheets in the front building.
The front building had a gable roof. Its highest point was 6.5 metres high and its lowest point was 3.8 metres high.
The front building had three areas (Area 1, 2 and 3). The roof structure in Areas 1 and 2 was constructed of steel beams and timber purlins. The steel beams were 4.5 metres apart. The purlins were 1.23 metres apart. The roof structure of Area 3 was constructed of steel beams and steel purlins.
A purlin is a horizontal structural roof member, which is connected to larger rafters or beams.
The timber purlins were in poor condition. There were cracks and signs of splitting in a number of the purlins.

The Work Being Performed

The work being performed at the time of the incident was the removal of asbestos roof sheeting from the roof in Area 1 of the building. The steel safety mesh under the roof sheets was also being removed.
Mr McAskill installed edge protection around the perimeter of the roof of the building.
The workers were not using an individual fall arrest system whilst they were stripping the roof sheeting as there were no suitable and available anchorage points on the roof.
In order to perform the task of removing the asbestos roof sheeting, workers first placed timbers across the steel joists of the roof and placed plastic sheeting down across the timbers.
The workers then took the screws out of the roof sheets and placed the sheets in a stack on the plastic sheeting. The workers stacked between 10 and 25 roof sheets in each pile.
Once the workers had completed a pile, the stack of sheets were wrapped in the plastic and a crane lifted the stacks from the roof to the ground.
On the day of the incident, stacks of sheets had been removed from the roof using this method.

The Incident

At 6.30am on 28 February 2019 roofing work commenced at the site. The roofing workers stripped two stacks of roofing sheets from the roof. Each of these two stacks weighed between 500kg and 600kg.
At 8.50am on 28 February 2019 Mr Te Riini and Mr McKenzie were placing sheets onto a third stack on the roof. There were 20 or 21 roof sheets in the stack.
A number of the timber purlins below the third stack of sheets broke under the weight of the stack.
This caused the section of the roof structure, on which Mr Te Riini and Mr McKenzie were standing, to fall. The stack of roof sheets fell to the concrete floor below. The collapse of the purlins and the falling of the roof sheets damaged the wire safety mesh in the location below that section of the roof.
Mr Te Riini and Mr McKenzie fell through the roof and the wire safety mesh onto the concrete floor about four metres below.
One roof sheet fell onto Mr McKenzie's head and the rest of the stack landed next to him.
Mr Irving was in the immediate vicinity of the section of the roof that collapsed. He began to fall through the roof but was able to hold onto a roof sheet and pull himself back up.
Mr Thomas was standing on a purlin cutting the wire safety mesh when the roof collapsed. He fell and got his ankle caught between a roller door and the wall. Mr Thomas pulled himself back onto the roof. He then heard the roof crack and he jumped.

Injuries to Workers

Mr McKenzie suffered numbness to both shoulders and his left upper arm, cuts to the head requiring stitches, a knee injury, lacerations and rib bruising. He was admitted to Liverpool Hospital and discharged after two nights on 2 March 2019.
Mr Te Riini sustained grazes and bruises to his head, abrasions over his right hip, right arm and left forearm, a laceration over his right knee with leg swelling and soreness to his shoulder. He was admitted to Liverpool Hospital and discharged after one night on 1 March 2019.
Mr Thomas sustained swelling and bruising to his left knee.
Mr Irving suffered scrapes and bruising.

Inspection of the Site Following the Incident

At 11.00am on 28 February 2019 Inspector Jamie Hinton of SafeWork NSW attended the site and undertook an inspection. Inspector Hinton made the following observations: 1. Approximately 207 square metres of roof sheets and steel mesh had been removed from Area 1 of the building. 2. A stack of approximately 20 roof sheets (the stack), dust and debris were located on the floor of Area 1. 3. The height from the roof to the floor below where the stack was located was four metres. 4. A broken purlin was located above the stack and was hanging from the roof. 5. The safety mesh showed signs of rust and there was a split in the mesh where it came apart.
On 5 March 2019 Mr Frederick Birkl, a civil engineer of FWB Civil Engineering, attended the site to conduct an inspection of the roof structure and assess the structural adequacy of the remaining timber purlins.
Mr Birkl observed that nine timber purlins had failed or were damaged due to the roof collapse.

Advanced Buildings

Advanced Buildings completed an Incident Investigation Report following the incident.
Advanced Buildings found that the roof collapsed due to the overloading of roof sheets. Advanced Buildings identified the following underlying causes: 1. Point overload of stacked roof sheets. 2. Incorrect stacking of roof sheets. 3. No support under stacked sheeting.

The Weight of the Sheets

On 5 March 2019, during his site inspection, Mr Birkl observed that the roof sheets stacked on the ground measured 1.08 metres by 2.9 metres and weighed 15.6 kg/ m².
Based on these observations, Inspector Valdis Leinasars of SafeWork NSW calculated that the weight of the 20 sheets on the roof was 977 kg.

Guidance Material

Clause 78 of the Work Health and Safety Regulation 2017 (the Regulation) provided: "Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person."
Clause 79 of the Regulation provided: "Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. … (3) The person provides adequate protection against the risk if the person provides and 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."
The WorkCover NSW Code of Practice - "Safe Work on Roofs, Part 1: Commercial and Industrial Buildings" dated 2009 (Roofs Code of Practice) stated that before roof operations start, the principal contractor, in consultation with the contractors doing the work, must undertake an assessment of the risks involved in carrying out the work and: 1. Ensure the roof structure is complete and braced. 2. Ensure the strength of the roof members is adequate to support the system to be used for controlling the risks of a fall injury. 3. Plan for positioning of bundles of roof material to avoid excessive point loading on the structure. 4. Identify the presence of any asbestos at the worksite or in the roof. 5. Ensure that all workers have received appropriate training and instruction. 6. Obtain Safe Work Method Statements (SWMSs) from the subcontractors, that adequately describe the work to be carried out.
The Roofs Code of Practice further provided that in addition to coordinating with the principal contractor, all contractors must: 1. Undertake an assessment of the risk involved in carrying out the work. 2. Provide a written SWMS, describing how the work is to be done safely. It should make an assessment of the risks involved in carrying out the work. 3. Plan to distribute materials and other equipment to be placed on the roof so that excessive point loading on the roof structure is avoided.
The Roofs Code of Practice also recommended that contractors should avoid storing old roofing material on the roof. Instead they should transfer it from the point of removal to the ground.
The SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces dated April 2016 (Falls Code of Practice) stated that structures should be inspected to assess stability and in some situations advice may be needed from technical specialists, such as structural engineers, to check the stability of structures or load bearing capacity.
The Falls Code of Practice also stated: "Structural strength Different types of work involve different loads on the supporting surface. The surface and its supports must be able to safely carry the expected loads, including workers, materials, tools and equipment. When in doubt, have a structural engineer determine the safe load capacity before use."
The SafeWork (NSW) Code of Practice - How to Safely Remove Asbestos dated September 2016 (Asbestos Code of Practice) stated that asbestos roof sheeting can become brittle with age, so any removal work on roofs should address the risk of fall hazards. It also stated that a system of removal that involves walking on the roof to remove roof sheeting should be a last option when choosing a method to remove roof sheeting.
The above Codes of Practice were readily accessible and available in the public domain prior to the incident.

Inspection of the Roof Prior to the Incident

On 20 January 2019, prior to work commencing at the site, Advanced Buildings, Mr Steve Vardies from Enviropacific Services Pty Ltd (Enviropacific) and Mr Perry conducted a visual ground-based inspection of both buildings and discussed the logistics of the work on the site.
During the inspection no one raised an issue with the structural integrity or condition of the timber purlins in either building. The structural integrity of the roof of the building and its load bearing capacity were not assessed during the inspection. The condition of the timber purlins was also not considered during this inspection.
Mr Perry, Mr Holloway and Mr McAskill also performed a visual inspection of the front building, which included scoping out the timber purlins and ensuring they were not damaged in a way that would make the work method of stacking the sheets on them unsafe. The sheets appeared to Mr Perry to be in good condition. Mr Holloway considered the roof was structurally sound as he was able to walk on it.
Enviropacific conducted an inspection of the building prior to the incident for the purposes of providing Advanced Buildings with a quote for the removal of the roof sheeting. Enviropacific did not consider that the roof frames would support a stack of roof sheets. The timber purlins in the roof were not considered by Enviropacific to be of sufficient strength to support a load of stacked roof sheets.
Enviropacific's quotation for the works at this site was not accepted by Advanced Buildings.
Advanced Buildings did not provide Perry's Roofing with any information to the effect that Enviropacific did not consider that the roof frames would support a stack of roof sheets, or that the timber purlins in the roof were not considered to be of sufficient strength to support a load of stacked roof sheets.
Ms Nicole Gallagher, Advanced Building's Safety Officer (who was responsible for preparing the safety plan and risk assessment), attended the site but did not inspect the front building and did not know there were timber purlins in the relevant section.
Neither Advanced Buildings nor Mr Walshaw advised Perry's Roofing, during consultation prior to the works commencing, that it had not engaged a structural engineer or other suitably qualified person to assess the load bearing capabilities of the roof structure or the structural integrity of its components, including the timber purlins. Perry's Roofing did not verify whether Advanced Buildings had engaged a structural engineer.
In February 2019, after completing the works on the rear building, Perry's Roofing and Prime Metal conducted a further visual inspection of the front building before work commenced on the roof. Mr Perry considered that the timber purlins were in good condition and did not identify any cracks or breaks in the beams.
Mr Perry was satisfied that the timber purlins were fit to handle the point loading that would be placed on them through the process of stacking of asbestos sheeting on them. Mr Holloway considered the roof was structurally sound as he was able to walk on it.
No concerns were raised by Advanced Buildings, Perry's Roofing or Prime Metal during either inspection that the roof structure, and in particular the timber purlins supporting the roof, would not be able to support the point loading arising from the stacking of roof sheets.

Systems of Work Prior to the Incident

Mr Perry determined the system of work for the removal of the roof sheeting at the site, namely to load stacks of sheets that were removed directly and evenly balanced on the largest central steel I-beam of the roof which was supported by the timber purlins. This system was reflective of the industry practice.
Mr Perry instructed the workers to stack the load directly and evenly balanced on the largest central I-beam and to place no more than 25 sheets in a stack, to a maximum load of 500kg.
Prime Metal followed instructions of Perry's Roofing on how to perform the work.
If Mr Perry had been aware or told about any defects in the timber purlins he may have adopted a different system of work.

Safe Work Method Statements

Advanced Buildings had a Project Safety Management Plan for the site. The plan required contractors to supply Advanced Buildings with a written SWMS which explained how risks were to be controlled prior to the work activity commencing. The Advanced Buildings Work Health and Safety Plan provided that any SWMS would be assessed, monitored and reviewed by Advanced Buildings. This included the ability to issue "improvement notices" to contractors.
Perry's Roofing provided Advanced Buildings with SWMSs for the task of "Metal Roofing" and "Replace Asbestos Roof with Colorbond". Advanced Buildings reviewed and approved the SWMSs (following a request for changes to be made).
Prime Metal did not have a SWMS for the works at the site. It operated under Perry's Roofing's SWMSs.
The SWMSs did not identify the risk of the roof collapsing due to excessive point loading.

Systems of Work Following the Incident

SafeWork NSW issued several notices following the incident, including Prohibition Notice No. 46518 to Advanced Buildings. The Prohibition Notice required Advanced Buildings to: 1. Cease all works immediately. 2. Ensure the risk of falls was eliminated or minimised by developing and implementing a safe system of work. 3. Ensure SWMSs were prepared and reviewed prior to carrying out any further roof works.
Perry's Roofing and Prime Metal ceased working at the site following the incident.
Mr Birkl opined that any additional loads (of materials and workers) on the existing roof structure could lead to failure of the remaining timber purlins and recommended that no additional weight be placed on the roof during the removal of the remaining roof sheeting.
Advanced Buildings engaged Enviropacific to remove the remaining asbestos roof sheeting from the roof. Enviropacific removed the roof sheets by using a scissor lift below the roof.
Perry's Roofing engaged a work health and safety consultant to audit its safety systems and update its SWMS. In relation to the risk of falls from height when removing roof sheeting containing asbestos, the updated SWMS covers the potential hazard and risk of "Roof structure not adequate to support workers and/or roof sheeting that is being removed resulting in falls from height", and provides the following hazard and risk control measures: "Principal Contractor/Client to provide report on the stability of the roof structure including loading points for materials. Where required, back propping may be required, Principal Contractor/Client to install back propping prior to Perry's Roofing accessing the roof."

Evidence for the Defendant

Mr Grant Perry affirmed an affidavit on 30 June 2022 (DX 1).

Background to Perry's Roofing

Perry's Services was a business which was commenced in 1986 by Mr Perry's father. Mr Perry left school in 1993 at the age of 14 and commenced a roofing apprenticeship with his father at Perry's Services. On 1 April 2012, after his father retired, Mr Perry took over Perry's Services. Mr Perry then established Perry's Roofing as a new corporate entity. Mr Perry has held the position of Director of Perry's Roofing since 2012. In this role, he oversees the procurement, project management and completion of residential and commercial roofing work.
Perry's Roofing undertakes roofing works in New South Wales. Perry's Roofing provides repair, re-roofing and installation of slate, metal and tile roofs and asbestos removal services on both commercial and residential properties. It is a small family business with six employees.
Mr Perry separated from his partner of 21 years in 2019. Mr Perry's former partner assisted with the administration of the business. The separation has caused Mr Perry significant distress for which he has been prescribed anxiety medication. Mr Perry is now assisted in the business by his sister and his cousin.

Work Health and Safety Systems

Mr Perry is a qualified and licensed roofer with more than 20 years of experience in the industry. In his affidavit he set out the licences which he holds.
Mr Perry said that for each project Perry's Roofing develops a SWMS to identify hazards and risks. Mr Perry was well aware that the hazards of roofing work included falls from heights. Mr Perry does not work on each site, but makes frequent site visits, keeps in touch with the site foreman and remains contactable by mobile phone.
Mr Perry said that he takes steps to "ensure" that safety processes and systems are being implemented and followed, that workers are properly inducted, and that an experienced worker is always present on site to ensure that all workers are complying with safe work procedures. He said that he also takes steps to "ensure" that new workers are closely supervised.

Work Undertaken at the Site

Perry's Roofing was subcontracted by Advanced Buildings to undertake roofing work at the site.
Mr Perry said that Perry's Roofing subcontracted the roofing works to Prime Metal to remove and replace the roof at the site. As counsel for the prosecutor pointed out (MFI 1, par 19), this was not correct. The Agreed Statement of Facts (PX 1, Tab 1, par 15) said that Perry's Roofing engaged Prime Metal to provide labour for the job. Mr Perry said that he had a long association with Prime Metal and he had confidence in the skills and expertise of the company.
Perry's Roofing conducted a visual inspection of the site before work commenced on the roof. A SWMS was prepared that identified the hazards and risks associated with the work.
Mr Perry said that Advanced Buildings, as principal contractor, had control over the site and its safety. Advanced Buildings did not inform Mr Perry that Enviropacific did not consider that the roof frames would support a stack of roof sheets.
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.
At par 77 of DX 1 Mr Perry accepted that Perry's Roofing should have verified that Advanced Buildings had engaged a structural engineer to inspect the roof. At par 78 of DX 1 Mr Perry accepted that Perry's Roofing should not have permitted workers to commence the work until a structural inspection of the roof had been undertaken. At par 79 of DX 1 Mr Perry accepted that its SWMS should have included the risk of the roof collapsing due to excessive point loading and specified that a structural inspection of the roof must be undertaken prior to commencing the task.

Steps Taken Following the Incident

Since the incident, Perry's Roofing has taken the following steps: 1. Perry's Roofing engaged an external safety expert, Mr Kevin Collins of Construct Safe Pty Ltd, to conduct a safety audit and prepare an amended SWMS. 2. Mr Perry has completed a Certificate IV in Work Health and Safety from a registered training provider. 3. Perry's Roofing reinforced its induction processes and ensured that the Principal Contractor will report any safety concerns directly to Mr Perry. 4. Perry's Roofing offered counselling to its workers and Prime Metal workers. 5. Perry's Roofing cooperated with SafeWork NSW as part of its investigations.

Apology

Mr Perry expressed his sincere remorse, on behalf of Perry's Roofing, for exposing workers to a risk of death or serious injury. Mr Perry acknowledged that the incident should not have occurred and could have been prevented.

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. 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. In any event the risk was foreseeable and there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was significant. It was Perry's Roofing which gave the direction to the workers to stack 20 to 25 sheets in a pile, creating a stack which weighed twice what it should have. 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. 5. There was no great burden or inconvenience in these steps being implemented. 6. Four workers fell and were thus put at risk of serious injury or death. Mr McKenzie and Mr Te Riini suffered significant injuries, requiring hospitalisation. It was a miracle that no workers were killed or more seriously injured. 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. Only 17 days earlier, Perry's Roofing breached its duties under the Act, resulting in the death of a young labourer and serious burns to another. The sentence hearing in that matter took place on the same day as the hearing in these proceedings: SafeWork NSW v Perry's Roofing [2022] NSWDC 261. While that was a different site, with different workers, and a different risk, it almost defies belief that Perry's Roofing did not immediately institute a root and branch review of safety at all of its sites. 9. There are troubling similarities between the two incidents. In the earlier incident, Mr Perry inspected the site and failed to realise that clearly observable high voltage power lines adjacent to a roof posed a potentially deadly risk to workers on the roof. In the present case Mr Perry looked at the purlins but failed to properly consider whether they posed a risk of failure. It is not good enough for industrial companies to form a "gut feel" view about matters which clearly should be the subject of a proper risk assessment, expert advice, a detailed SWMS, and appropriate training and supervision. 10. 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 Advanced Buildings 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. 11. On the material put before the court on this sentence hearing, the acts or omissions of those other 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 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].
Falls from height are depressing common. There was evidence in this case (PX 3, par 16) that SafeWork NSW knows of 175 falls incidents in New South Wales between 1 January 2019 and 23 June 2022 which resulted in 23 fatalities and 153 serious injuries.
In my decision in SafeWork NSW v Ru Dong Li [2018] NSWDC 189 I listed 22 judgments of this court, delivered since the start of 2016, which involved a fall from height. Further research, and more recent cases added to that list, show that since the start of 2016, the District Court has delivered sentence in 67 cases involving a fall from height. I repeat what I said at par [47] of my previous decision: "In the light of that troubling litany of death and serious injury, general deterrence is a very important factor in this case."
The penalty must reflect the need for specific deterrence. Perry's Roofing is still conducting a business. Its operations involve residential and commercial roofing work, including asbestos removal and the continuing engagement of workers.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

Perry's Roofing does not have a previous record of convictions, apart from the conviction recorded on 5 July 2022 in relation to the sentence hearing conducted on that day for the earlier offence which has been referred to above: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Perry's Roofing 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.
Perry's Roofing has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injuries to Mr Thomas, Mr Te Riini, Mr McKenzie and Mr Warren were caused by its actions.
Perry's Roofing entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. 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) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Perry's Roofing a 25% discount for an early plea.
Perry's Roofing 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 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 lack of any proper precautions being taken at the site in relation to an obvious risk, the exposure of four workers to the risk, and the need for general and specific deterrence, mean that the fine must still be substantial.

Proposed Project Order

The prosecutor made application under s 238 of the Act for an order requiring Perry's Roofing to undertake a specified project for the general improvement of work health and safety. The project proposed was the production of an animated educative video to raise industry awareness of the risks of falls from heights.
I do not think that this case provides an appropriate vehicle for such an order. The specific risk in this case involved a roof collapse arising from excessive point loading of the roof structure. Mercifully such cases are rare. There have been no similar cases in this court in the last six years. Far more common, in the experience of this court, are falls from heights where there is no edge protection or where safety harnesses should have been worn but were not. I would not seek to dissuade the prosecutor from seeking a s 238 order in an appropriate case, where there is a clear need to educate industry about such depressingly common events.
Further, I have recognised above that Perry's Roofing has a limited financial capacity even to meet a fine. I do not see how it could afford to fund the production of a video, even if it can ultimately pay the fines in this case, and in the prosecution for the earlier event.
I decline to make an order under s 238 of the Act.

Costs

The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

Penalty

My orders are: 1. Perry's Roofing Pty Ltd is convicted. 2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Perry's Roofing Pty Ltd to pay a fine of $150,000. 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 Perry's Roofing Pty Ltd to pay the prosecutor's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2022

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