//
[2025] NSWDC 249
General information, not legal advice.
District Court of NSW
2025-07-10
Russell SC DCJ
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v SG Interior Linings Pty Ltd [2025] NSWDC 249
Hearing dates: 7 July 2025
Date of orders: 10 July 2025
Decision date: 10 July 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) SG Interior Linings Pty Ltd is convicted.
(2) The appropriate fine is $120,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order SG Interior Linings Pty Ltd to pay a fine of $90,000.
(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 SG Interior Linings Pty Ltd to pay the prosecutor’s costs.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty
COSTS – prosecution costs
OTHER – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited: SafeWork NSW, Code of Practice - Construction Work, August 2019
SafeWork NSW, Code of Practice - Managing the risk of falls in the workplace, August 2019
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
SG Interior Linings Pty Ltd (Defendant)
Representation: Counsel:
N Evans (Prosecutor)
P Barry (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
KPT Defence Lawyers (Defendant)
File Number(s): 2024/167667
SG Interior Linings Pty Ltd (SG) was engaged to complete plasterboard wall, ceiling linings and cladding works. On 6 May 2022 Mr Hongwei Dong, a worker carrying out work for the defendant on a window frame on level two of a work site was squatting inside a void that was covered with black plastic, attempting to remove clips. Mr Dong fell approximately five metres through the void and black plastic, hitting some machinery as he fell to the ground below. He sustained serious injuries.
SG has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed workers, and in particular Mr Dong, to a risk of death or serious injury contrary to s 32 of the WHS Act.
The maximum penalty for the offence is a fine of $1,782,579.
“The risk was the risk of workers, in particular Mr Dong, suffering serious injury or death as a result of falling from height from an exposed window frame to the ground level below.”
“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Dong, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:
(a) Undertake an adequate risk assessment for the removal of furrow channel clips from a window frame that identified the risk of a fall from an open and exposed void, assessed the risk and determined the most effective control measures to manage the risk;
(b) Enforce the defendant’s control in place that to access the window to remove the clips such access must be gained by the use of a scissor lift provided on site.
(c) Provide adequate information, training and instruction to workers about the hazard of working at heights and the measures implemented to guard against it in accordance with the Safe Work Method Statement (SWMS);
(d) Provide adequate supervision to workers to ensure compliance with its SWMS;
(e) Prohibiting work being carried out in areas where voids or penetrations were located until any voids or penetrations through which a worker could fall had been securely covered.”
The parties presented an Agreed Statement of Facts and this material is summarised below.
Quasar Constructions (Commercial) Pty Ltd (Quasar) conducted a business or undertaking which provided construction services. Quasar was the principal contractor engaged to complete design finalisation and construction of a project at a school located in Wahroonga NSW (the Site). The job involved renovating and demolishing an existing structure in order to build a new school library.
SG conducted a business or undertaking which involved cladding, plasterboard and gyprock services.
Quasar engaged SG to complete the plasterboard wall, ceiling linings and cladding works for the project.
Mr Dong commenced employment with SG as a gyprock installer on or around 28 February 2022. Mr Dong held a WA Occupational Health and Safety Construction Induction Card and was qualified to operate elevating platforms. He had approximately 14 years of gyprock experience. Mr Dong commenced working at the site in or around April 2022.
Quasar and SG entered into a subcontract dated 28 August 2021 for a sum of $250,000.
The subcontract said that SG was engaged to carry out and complete all of the plasterboard wall, ceiling linings and cladding works for the project.
The specific works being undertaken at the time of the incident were being undertaken and supervised by SG. Pursuant to clause 49 of the subcontract, SG had responsibility for ‘controlling and supervising all of the work performed by its personnel’. Mr Dong was part of SG’s ‘Personnel’ as defined under the subcontract.
On 6 May 2022 Mr Dong was dismantling some steel works and fixings on a window with a hammer and crowbar. No instructions were provided to Mr Dong in relation to how to complete the task.
Mr Dong began by removing furring channel clips that were the incorrect size and did not fit the aluminium frame. He successfully removed the clips from one of the two window voids on level one using an elevated work platform (EWP).
Mr Dong attempted to do the same on the second window void, however the EWP was not available. Instead, he squatted on the windowsill. The void for the second window was covered with black plastic.
Mr Dong fell approximately five metres through the plastic that was covering the void, striking part of a machine before hitting the ground.
Mr Dong was taken by ambulance to Royal North Shore Hospital. He sustained serious injuries from the fall including:
Deformity in the spine at level of scapula; tenderness at C7, T7, T9, L3, L5.
Compression fracture of T9 vertebral body with 70% loss of height.
Mild broad-based disc bulge at C5/C6.
Acute fractures in the thoracic spine with bone oedema at T8-T11.
Mild intervertebral disc degenerative change at L5/S1.
Multiple bilateral rib fractures to 1st, 4th and 11th ribs.
Traumatic brain injury. Mr Dong remained in post-traumatic amnesia for 22 days, which indicates severe brain injury.
Prior to the incident SG had the following in place:
A Safe Work Method Statement (SWMS) that identified hazards such as fall from heights and included control measures to prevent falls from heights including using an EWP and working from platform ladders. The SWMS did not identify falls from windows or voids as a risk when undertaking tasks at the site.
On 28 February 2022, Mr Dong undertook a site induction which included a review of the SWMS, which he signed.
The Code of Practice - Construction Work*,* August 2019 and Code of Practice – Managing the risk of falls in the workplace*,* August 2019 were published and available to both Quasar and SG prior to the incident on the SafeWork NSW website.
The Code of Practice - Managing the Risk of Falls at Workplaces 2019 said that the following steps should be taken to inspect the workplace:
Hazards may be identified by looking at the workplace and how work is carried out.
Walk around the workplace and talk to your workers to find out where work is carried out that could result in falls. A checklist may be useful in this process.
Particular attention should also be given to work tasks that are carried out near an unprotected open edge or near a hole, shaft, or pit into which a worker could fall.
A fall prevention device (for example a secure fence, edge protection, work platform or cover) must be used to provide and maintain a safe system of work where persons are working near and around holes, penetrations, and openings through which a person could fall, if it is reasonably practicable to do so.
Following the incident SG made changes to its SWMS including: providing a translation in Mandarin; requiring approval from Quasar prior to removing furring channel clips at any height; and stating that a platform ladder must not to be used within three meters of a potential fall, for example from a window, wall opening, handrail or stair.
An Occupational Health Safety and Environment Policy (OHSE) specific to the project at the site was introduced. This included a SWMS that identified hazards associated with the project.
Mr Kenny Guan affirmed an affidavit on 27 June 2025 (DX 3). Mr Guan founded SG with his father in 2008 and has been the sole director of SG since 2021.
SG engages in work involving dry wall lining, suspended ceilings work, internal fit outs and external facade cladding. Most of the work undertaken by SG is commercial work.
Since it commenced operations, most of the work which SG undertook was for Quasar. The work that SG undertook for Quasar was project based for lump-sum amounts.
For each project SG hired the number of workers it needed for the particular project. For the school project, SG hired seven workers, including the injured worker Mr Dong.
Despite the project-based nature of SG’s works, where possible it would directly hire workers instead of requiring those workers to operate as contractors. In the case of Mr Dong, SG hired him directly for the project at the school. This meant that in addition to paying wages, relevant amounts were also paid with respect to Mr Dong’s taxation and superannuation.
Because of SG’s working relationship with Quasar, it operated under many of Quasar’s safety systems, in particular in relation to site induction for workers and weekly toolbox talks. It was Quasar’s practice to conduct weekly toolbox talks with all workers on site, including its contractors. It was a requirement for SG’s workers to attend those toolbox meetings. Examples of weekly toolbox talks conducted by Quasar and attended by SG workers were annexed to Mr Guan’s affidavit.
If further specific information needed to be given to SG workers, those workers attended a separate pre-start meeting with the SG foreman Mr Nick Ni. These meetings were typically undertaken verbally.
At the time of Mr Dong’s site induction, Mr Guan knew that the Quasar worker performing that induction did not speak Mandarin. Mr Guan also knew that Mr Dong’s English comprehension was lacking. Therefore Mr Guan also arranged for Mr Ni (a native Mandarin speaker) to accompany Mr Dong during his induction in order to translate for him.
After being inducted onto a site, SG workers were then taken through the SG SWMS that applied to that project. Prior to the incident the practice at SG was for the SG foreman to sit with the workers and verbally take them through the SWMS. This is because at that time the SG SWMS for each project was only written in English, but many of SG’s workers had varying levels of English comprehension. Once this was completed, workers were then signed onto the SWMS. A copy of the relevant SG SWMS that applied to the school project was annexed to Mr Guan’s affidavit.
Once inducted onto the SWMS, Mr Ni and Mr Guan’s father oversaw the work being performed. When SG hired Mr Dong, Mr Guan knew that Mr Dong had worked in the industry for approximately five years. Mr Dong was a good and diligent worker.
In order to undertake certain works at height SG used the on-site scissor lift or EWP provided by Quasar. Part of the SG worker induction to its SWMS included an explanation about the use of the EWP and when the EWP was required to be used.
During 2021 SG regularly engaged a WHS safety consultant Mr Tom Vagana. SG engaged Mr Vagana to provide a number of safety related services. This included drafting and implementing relevant safety documentation for SG’s undertaking and reviewing a completed SWMS prior to the particular project commencing.
Following the incident involving Mr Dong, an exclusion zone around the area was immediately established and engineering controls were put in place to secure the opening around the window frame.
A further toolbox was then undertaken by Mr Ni for all SG workers. The purpose of that toolbox talk was to reinforce the requirement in the SG SWMS that working at heights required correct controls, including the use of the EWP. A copy of the toolbox talk undertaken by Mr Ni was annexed to Mr Guan’s affidavit.
SG also undertook a complete review of its SWMS template, not only because it related to the school project, but due to the similar nature of work undertaken by SG generally.
The SG SWMS was translated into Mandarin. Mr Ni still read the contents of the SWMS to workers. A copy of the SG post-incident amended SWMS was annexed to Mr Guan’s affidavit.
Mr Guan said in his affidavit that SG is unlikely to commit another offence of this type in the future, because SG has made important changes to its approach to minimise the prospect of any similar event occurring again.
Despite the inherently dangerous nature of the work undertaken by SG, no further safety incident has occurred.
From 2016 until mid-2024 SG donated approximately $9,000 to a homeless charity group called Walking on Water.
Mr Guan and his wife periodically cook food needed for this charity, to distribute to the homeless.
Following the incident, Mr Guan and his father visited Mr Dong in hospital and provided regular updates to Quasar about Mr Dong’s treatment.
Once Mr Dong left hospital Mr Gaun’s father (a native Mandarin speaker) stayed in contact with Mr Dong for many months.
Mr Guan also maintained contact with Mr Dong. Approximately 4 to 5 months after the incident he lent Mr Dong $6,000. Mr Dong said to Mr Guan he would treat it as a loan but Mr Guan does not intend to ask for that money back. Mr Guan also offered to help Mr Dong with buying groceries and other necessities, however Mr Dong told Mr Guan that he already had assistance for this.
In September 2024 SG’s sole client, Quasar went into liquidation. From 2014 to September 2024 SG worked continually for Quasar. Since then, SG has suffered a significant drop in income. Since September 2024 SG has undertaken some smaller jobs when it could obtain them.
As at the date of affirming the affidavit, SG has no current work. Mr Guan is continually working to win jobs and ensure SG remains in the industry, however no work has been secured as at the date of affirming the affidavit. Mr Guan is currently the only employee of SG.
SG tendered the following financial documents in relation to its financial position:
Profit and loss statements for 2022, 2023 and 2024 (DX 1).
The 2025 bank statements for SG, Mr Guan and his wife (DX 2).
In relation to SG’s assets, the vehicles it owns are all financed. SG cannot sell any of these assets to pay any fine because if it does it will not be able to operate without them. In any event, even if they were sold the finance would need to be paid out. In 2025 friends of Mr Guan have lent money to pay the vehicle finance payments.
The 2024 profit and loss statement shows an asset of around $150,000. This is the amount then owed to SG by Quasar for the work which SG did for Quasar. That amount has not been paid to SG in full, and given that Quasar is now in liquidation, it is very unlikely that the outstanding amount will be paid to SG.
Since March this year, when SG completed its last job for Quasar Mr Guan has stopped paying himself a wage. Instead, his family now lives off his wife’s income. Mr Guan’s wife works at a radio station and earns approximately $75,000 gross per year.
On behalf of SG, Mr Guan said he is extremely sorry for the harm caused to Mr Dong as a result of the incident. SG is a small business and its workers work closely together. That Mr Dong suffered his injuries as part of the SG group of workers is particularly upsetting to Mr Guan.
Mr Guan is very sorry for the pain and life changing events that Mr Dong and his family have suffered.
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 WHS Act in the matter of Nash v Silver City Drilling *(*NSW) Pty Limited; Attorney General for NSW v Silver City Drilling *(*NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:
“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”
“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.”
“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:
The risk of a fall from height was actually known by the offender. Further, there was ample guidance material on the topic.
There was a significant likelihood of the risk occurring.
The potential consequences of the risk were death or serious injury.
There were simple and effective steps available to eliminate or minimise the risk.
There was no particular burden or inconvenience of implementing those steps. They were taken almost immediately after the incident.
The extent of the harm caused was significant, although the court knows no more than was set out in the agreed facts.
The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.
SG did have a safety system in place, both written (the SWMS) and oral (the toolbox talks and the information conveyed in Mandarin by Mr Ni). However there was a failure to follow the system which led to the incident. An EWP should have been used, but as counsel for SafeWork pointed out, there was no explanation for why an EWP was made available to work on the first window opening, but not the second.
I find that the level of culpability of SG is in the lower half of the mid range.
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. Falls from height are depressing familiar in this court, and have been the subject of judicial lament in many judgments.
The penalty must reflect the need for specific deterrence. SG is still conducting a business, although it is dormant at the moment.
SG has no previous convictions: s 21A(3)(e) CSP Act.
SG is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. SG has been in business for 17 years.
SG is unlikely to re-offend: s 21A(3)(g) CSP Act.
SG has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
SG has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Dong was caused by its actions.
SG entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give SG a 25% discount for an early plea.
SG gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.
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.”
My orders are:
SG Interior Linings Pty Ltd is convicted.
The appropriate fine is $120,000 but that will be reduced by 25% to reflect the early plea of guilty.
Order SG Interior Linings Pty Ltd to pay a fine of $90,000.
Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
Order SG Interior Linings Pty Ltd to pay the prosecutor’s costs.
**********
SafeWork NSW
SG Interior Linings Pty Ltd [2025] NSWDC 249
(1988) 166 CLR 51
(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(2011) 244 CLR 120
(2006) 66 NSWLR 566
(1988) 164 CLR 465