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[2025] NSWDC 434
General information, not legal advice.
District Court of NSW
2025-10-29
Russell SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434
Hearing dates: 16 October 2025
Date of orders: 29 October 2025
Decision date: 29 October 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) Wrigley Metal Roofing Co Pty Ltd is convicted.
(2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Wrigley Metal Roofing Co Pty Ltd to pay a fine of $225,000.
(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 Wrigley Metal Roofing Co Pty Ltd to pay the prosecutor’s costs agreed in the amount of $23,000.
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 from height – slip while climbing down the outside of scaffold – inadequate risk assessment – unprotected edges – no site-specific SWMS – failure to provide adequate supervision, training and instruction – failure to verify components of scaffold were correctly installed and remained in place – unsafe entry to roof – access to roof without appropriate safety measures in place
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291
Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
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 - Managing the Risk of Falls, August 2019
SafeWork Australia, Safe Work on Roofs Information Sheet, January 2016
SafeWork Australia, Guide to Scaffold Inspection and Maintenance, July 2014
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Wrigley Metal Roofing Co Pty Ltd (Defendant)
Representation: Counsel:
A Mykkeltvedt (Prosecutor)
Solicitors:
Department of Customer Service (Prosecutor)
File Number(s): 2024/235552
Wrigley Metal Roofing Co Pty Ltd (Wrigley) was engaged as a subcontractor to carry out roof and cladding works at residential premises. On 25 July 2022 Mr Angus Hoskins was severely injured when he slipped and fell approximately 3.8 metres to the concrete below while climbing down the outside of a scaffold.
Wrigley has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Hoskins to a risk of death or serious injury contrary to s 32 of the WHS Act.
The maximum penalty for the offence is a fine of $1,860,843.
Wrigley entered a plea of guilty to an Amended Summons on 18 November 2024. On 30 April 2025 Wrigley was placed into liquidation. The liquidator was aware of the hearing and indicated that he did not wish to participate. A firm of solicitors was then acting for Wrigley. Wrigley has not filed or served any evidence. A director, Mr Joshua Wrigley, attended the hearing by AVL. He played no part in the proceedings, apart from observing the sentence hearing.
“The risk was the risk to workers, in particular Mr Hoskins, suffering death or serious injury as a result of falling from height while he was undertaking work in the area of scaffolding and an unprotected edge.”
“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Hoskins, was not put at risk, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable, the risk:
a. Undertake an adequate risk assessment for the works that identified the risk of a fall from unprotected edges, assessed the risk and determined the most effective control measures to manage the risk, including:
i. Assessing the scaffold and whether it was safe;
ii. Checking if edge protection was in place at all heights that would be accessed by workers;
b. Develop, implement and enforce a site-specific SWMS for the work that identified the hazard of unprotected edges and described the measures to be implemented to manage the hazard, including in relation to the maintenance of the scaffolding in place.
c. Provide adequate information, training and instruction to workers about the hazard of working at heights and the measures to be implemented to guard against it in accordance with the SWMS;
d. Provide and maintain appropriate levels of supervision of workers at the site, including, but not limited to:
i. Verifying that workers have read and understood relevant SWMS and procedures;
ii. Verifying that workers were complying with the identified safe systems of work at the site;
e. Verify that the components of the scaffold, in particular handrails, mid-rails, transoms, and toe-boards were correctly installed and remained in place;
f. Ensure that workers used only safe methods of access to roof/s at the site;
g. Ensure that workers did not access roof areas unless appropriate safety measures, such as edge protection, were in place at those locations;
h. Implement adequate supervision, training and enforcement practices in relation to workers performing work on and from the scaffold to ensure work was not undertaken using the scaffold unless all components were correctly installed, and the scaffold was safe to use.”
The prosecutor presented a Statement of Facts (PX 1, Tab 2) and this material is summarised below.
Customconstruction Pty Ltd (Customconstruction) conducted a business of residential construction work, and engaged subcontractors, including Wrigley and its employees, to work on the site located at Avalon Beach, NSW (the site).
The scope of the residential works was the renovation of the existing dwelling and the addition of an extension.
Customconstruction was the principal contractor for the project at the site.
In or around February 2022, Wrigley was engaged by Customconstruction to undertake resheeting and cladding work at the site.
On 4 May 2022 Webster Workplace Solutions Pty Ltd (Webster) was engaged by Customconstruction to install perimeter scaffolding with one internal ladder access for the two levels, at the back of the site, and provided a handover certificate noting that any components of scaffolding were not to be removed or altered without engaging a licensed scaffolder.
The works at the site consisted of two sections. The first was the existing dwelling which required the re-sheeting of the roof as well as renovations. The second section was an extension of the existing dwelling. This was to be constructed on a concrete slab with a corrugated metal roof and timber clad walls.
Part of the scope of works required the installation of the awning to the existing dwelling, adjacent to the scaffold. Customconstruction removed a portion of the top of the scaffold to install the awning and installed a handrail on this top portion of the scaffold.
Due to the placement of the scaffold, a further section of the scaffold was removed by Customconstruction to access the cladding and to install the final portion of cladding and a Heka hood (a bracketless awning system). A licensed scaffolder was not engaged to amend or alter the scaffold.
In the week prior to 25 July 2022, a plank had been placed on the top level of the scaffolding extending onto the rooves of the existing dwelling and the extension. The plank measured 4.01m long, 230mm wide, and 45mm deep.
The plank was used by workers to move from the scaffold to the roof area between the existing dwelling and the extension.
The plank was positioned approximately 3.8 metres above the ground below. It was not secured to the roof or the scaffold and did not have edge protection.
As at 25 July 2022, there was no toe-board, intermediate railing or top railing at the edge of the scaffold in the area of the plank.
There was no edge protection on the roof where the plank was located between the existing dwelling and the extension.
Mr Steven Koutouzis was a supervisor at the site. Mr Samuel Pollnow was the sole director and secretary of Customconstruction. Mr Koutouzis and Mr Pollnow oversaw all the works in the weeks leading up to the incident.
On 25 July 2022 around 7am, workers from Wrigley and Customconstruction arrived on the site.
The workers discussed the works that were to be undertaken that morning and made observations that the roof was wet or dewy.
Mr Hoskins, an apprentice roof sheeter and trainee supervisor employed by Wrigley, traversed the plank extending from the scaffold to the adjoining roof to assess the work that needed to be done.
As Mr Hoskins returned from the roof, he climbed down the outside of the scaffold. While he was climbing down, he slipped and fell approximately 3.8 metres to the concrete below.
Mr Hoskins suffered serious head injuries including cerebral haematomas, skull and facial fractures, bilateral pneumothoraces and pulmonary contusions.
Clause 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) provided that duty holders must manage the safety risks associated with a fall, including on an elevated workplace from which a person could fall.
Clause 79 of the WHS Regulation set out the specific requirements to minimise the risk of a fall. Clause 79(3) set out a hierarchy of controls for providing adequate protection against the risk of a fall. A duty holder provided adequate protection against the risk of a fall if it maintained 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.”
“Fall prevention devices” includes edge protection: cl 79(5) WHS Regulation.
The work carried out by Customconstruction and Wrigley was “high risk construction work” within the meaning of cl 291 of the WHS Regulation. As such, the duty holders were required to prepare a Safe Work Method Statement (SWMS) for the work that specified hazards relating to the high-risk construction work and risks to health and safety associated with those hazards; described the measures to be implemented to control the risks; and described how the control measures are to be implemented, monitored and reviewed: cl 291(a) WHS Regulation.
Prior to the incident SafeWork NSW (SafeWork) had published the Managing the Risk of Falls Code of Practice, August 2019 (the Code). The Code was published and available to Customconstruction and Wrigley prior to the incident. The Code relevantly provided:
The WHS Regulation required duty holders to work through the hierarchy of controls to choose the control that most effectively eliminates or minimises the risk in the circumstances. This may involve a single control measure or a combination of two or more different controls.
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.
Guardrails may be used to provide effective fall prevention around openings in floor and roof structures.
Fall arrest systems, such as individual fall arrest systems (including harnesses), are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use a fall prevention device or work positioning system or if these higher-level controls might not be fully effective in preventing a fall on their own.
Prior to the incident SafeWork Australia had published the Safe Work on Roofs Information Sheet, January 2016. The Information Sheet was published and was available to Customconstruction and Wrigley prior to the incident. The Information Sheet relevantly provided:
Falls from height are the major cause of death and injury when working on roofs.
Hazards to consider in managing fall risks include unprotected edges, skylights, holes and vents and trip hazards.
Workers such as electricians, plumbers, pest control operators, and installers of roof aerials, solar panels and air-conditioning systems, can trip and fall on roofs, through roofs, through openings or while accessing or exiting roof areas.
“(a) The scaffold and its supporting structure must be inspected by a competent person:
(i) Before the scaffold is used after repairs;
(ii) At least every 30 days.”
The work required to be undertaken on the site was “high risk construction work” within the meaning of the WHS Regulation because it involved a risk of a person falling more than two metres in height.
On the day of the incident, Customconstruction held on-site meetings with workers (including with Wrigley workers) during which the fact that the roof was dewy and might be slippery was discussed.
At the time of the incident, neither Customconstruction nor Wrigley had a documented SWMS for the work at the site.
Customconstruction had a general SWMS which identified the risk of physical injury and death from persons falling from heights. Workers at the site, including Mr Hoskins, had not been trained in that general SWMS.
At the time of the incident, neither Customconstruction nor Wrigley had documented site-specific policies or procedures regarding working at heights.
Mr Hoskins stated that he does not recall receiving any information, training or instruction in relation to the use of the scaffold at the site.
Prior to the incident, workers accessed the roof either by accessing the existing house and then climbing out onto the roof of the extension or by climbing the scaffold and using the plank to get onto the roof.
Neither Customconstruction nor Wrigley had a system in place for the regular assessment of the of the condition of the scaffold to ensure that no components were missing.
Neither Customconstruction nor Wrigley prevented workers from walking on the plank or accessing the scaffold, which had missing components.
Experienced tradesmen, Mr Koutouzis and Mr Pollnow, were supervisors on site.
After the incident SafeWork issued prohibition and improvement notices to Customconstruction in relation to the risk that gave rise to the incident.
Customconstruction took the following steps after the incident:
Developed a formal work health and safety plan for the site.
Prepared a site-specific SWMS and obtained SWMSs from subcontractors.
Arranged for employees to attend working at heights training.
Undertook an audit of safe work practices.
Held formal induction processes for all staff and subcontractors and documented the meetings.
Ensured that tampering with scaffolding was strictly prohibited.
Implemented a safety rail system on the second storey of the site.
Removed the plank between the scaffold and the roof.
Organised for a qualified scaffolder to rectify the scaffold.
Wrigley took the following steps after the incident:
Conducted risk assessments and prepared a site-specific SWMS for every site;
Developed and improved upon SWMSs noting:
(a) that all workers were required to be inducted before commencement of work; (b) scaffold was to be erected by a licensed scaffolder; (c) workers should not alter or modify the scaffold; (d) edge protection was to be certified by a competent person; (e) use scaffold and ladder for access to roof; and (f) the use of harnesses when working near unprotected edges.
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:
Wrigley ought to have foreseen the risk. In any event, Wrigley should have known of the risk by reason of the guidance material.
There was a significant likelihood of the risk occurring.
The potential consequences of the risk were death or serious injury.
There were steps available to eliminate or minimise the risk.
These was no great burden or inconvenience for those steps to be implemented.
The harm done to Mr Hoskins was very serious.
The maximum penalty for the offence is a fine of $1,860,843, which reflects the legislature’s view of the seriousness of the offence.
I find that the level of culpability of Wrigley is in 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].
Specific deterrence has no relevance. Wrigley is in liquidation and is no longer conducting a roofing business.
Wrigley has no previous convictions: s 21A(3)(e) CSP Act.
Wrigley 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 Wrigley a 25% discount for an early plea.
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:
Wrigley Metal Roofing Co Pty Ltd is convicted.
The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.
Order Wrigley Metal Roofing Co Pty Ltd to pay a fine of $225,000.
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 Wrigley Metal Roofing Co Pty Ltd to pay the prosecutor’s costs agreed in the amount of $23,000.
**********
Order (5) in Coversheet and last page of Judgment to include: costs "agreed in the amount of $23,000."
SafeWork NSW
Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434
(1988) 166 CLR 51
(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(2011) 244 CLR 120
(2006) 66 NSWLR 566
(1988) 164 CLR 465
Falls from even low heights can leave workers with permanent and debilitating injuries such as fractures, spinal cord injuries, concussion and brain damage. The risk of serious injury or death from a fall increases significantly as working heights increase.
The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls.
Protection must be provided if there is a risk of falling through the roof and work is being done on the top of the roof. Control measures to prevent injury from work roofs include using barriers such as guard rails or covers that are secured and labelled with a warning.
Prior to the incident, SafeWork Australia had published the Guide to Scaffold Inspection and Maintenance, July 2014. The Guide was published and available to Customconstruction and Wrigley prior to the incident. The Guide relevantly provided: