Citation: SafeWork NSW v Lewin Roofing Pty Ltd [2021] NSWDC 707
Court: District Court of NSW
Date: 21 December 2021
Judge: Strathdee DCJ
Background
The defendant, Lewin Roofing Pty Ltd, was a small roofing and plumbing business subcontracted to carry out roof sheeting replacement at a three-storey residential apartment building in Port Macquarie. The roof had four large, unprotected skylights. On 18 March 2019, the defendant's workers attended the site for the first time.
During the work, two labourers needed to carry long roof sheets, roughly 18 metres in length, across the roof. Because the harnesses they wore were not long enough to reach the stack of new sheets, both workers disconnected from their anchor points. While carrying a sheet with both hands above their heads, one worker tripped and fell through a skylight, dropping approximately 6.5 metres onto an internal stair landing. He suffered severe injuries including multiple spinal fractures, a fractured skull, and a brain haematoma, and had no capacity for employment as at the date of the agreed facts.
The defendant pleaded guilty on 9 August 2021 to a charge under section 32 of the Work Health and Safety Act 2011 (NSW) (the Act), which provides criminal penalties for a failure to comply with a health and safety duty where that failure exposes workers to a risk of death or serious injury. This is a Category 2 offence under the Act, carrying a maximum fine of $1.5 million for a corporation.
Legal Issues
- What was the appropriate sentence for a Category 2 WHS offence committed by a small corporation, having regard to objective seriousness, mitigating factors, and capacity to pay?
- What weight should be given to the defendant's guilty plea, cooperation, contrition, and financial circumstances?
- How should general and specific deterrence be balanced against a strong subjective case?
- How should the court address the defendant's limited financial capacity while still reflecting the gravity of the offence?
Decision
Strathdee DCJ assessed the objective seriousness of the offence as falling in the low to moderate range, though it remained a serious matter. The risk of falling through an unprotected skylight was well known and identifiable. The defendant failed to conduct a site-specific risk assessment, failed to identify the skylight hazard at the pre-start meeting, and relied on harnesses as the sole fall-prevention control when those harnesses were plainly unsuitable for the task of carrying large roof sheets with both hands. Protective covers over the skylights would have been a straightforward and reasonably practicable solution.
In mitigation, the court accepted a strong subjective case. The defendant cooperated with the investigation, pleaded guilty at an early stage, expressed genuine remorse, and had no prior relevant convictions. The court noted that the defendant was a husband-and-wife operation with limited means, and that any substantial fine would fall heavily on Mr Lewin and his young family. The court drew on the principle that a fine should first be assessed according to the gravity of the offence and then moderated to account for the defendant's means, without abandoning the need to reflect objective seriousness.
The court also emphasised general deterrence as a significant consideration in WHS prosecutions. The judgment reiterated that the Act's primary purpose is to ensure the highest level of protection for workers, and that sentencing must give effect to that policy objective.
Weighing all factors, the court determined a base fine of $180,000, reduced by 25 per cent for the early guilty plea, producing a final fine of $135,000.
Orders Made
- The defendant is convicted.
- A fine of $135,000 is imposed (base fine of $180,000, reduced by 25 per cent for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50 per cent of the fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's costs, agreed in the sum of $25,000.
Key Takeaways
- The District Court confirmed that, in WHS prosecutions, the objective seriousness of the offence is the primary sentencing consideration, and a defendant's financial constraints do not override the need to reflect that seriousness in the penalty.
- A conviction for a Category 2 WHS offence requires proof that the failure to comply with a duty exposed workers to a risk of death or serious injury; the prosecution does not need to establish that harm actually resulted, only that the risk existed.
- Where a defendant raises limited financial capacity, the proper approach is to fix the appropriate fine for the offence first and then reduce it to reflect impecuniosity, rather than treating financial hardship as a reason to avoid a meaningful penalty.
- Relying on a single control measure (harnesses) without assessing whether that measure is suitable for each specific task on site was found to constitute a significant failure, particularly where simple alternative controls such as skylight covers were available and reasonably practicable.
- An early guilty plea attracted a 25 per cent discount from the base fine, consistent with the established approach under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the guidance in R v Thomson & Houlton.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cls 78, 79, 291
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B
Cases
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Jahandideh v R [2014] NSWCCA 178
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Thomson & Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632