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District Court 2 May 2025

SafeWork NSW v Newcastle Roofing Professionals Pty Ltd

[2025] NSWDC 155

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Newcastle Roofing Professionals Pty Ltd [2025] NSWDC 155
Court: District Court of New South Wales
Date: 2 May 2025
Judge: Russell SC DCJ

Background

A roofing company was engaged to replace the roof at a split-level residential property in Valentine, NSW. On 8 November 2021, a roofing plumber contracted to the company accessed the roof and slipped before reaching an anchor point. He slid to the edge and fell approximately 4.2 metres to the ground, sustaining serious injuries.

The company pleaded guilty to failing to comply with its work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty for the offence was a fine of $1,782,579.

The prosecution arose from multiple failures in the lead-up to the works. The company had received an internal recommendation to install scaffolding, obtained a quote for scaffolding, attended an online meeting with SafeWork NSW about safe roof work, and yet proceeded without adequate fall prevention measures in place.

  • What fine was appropriate having regard to the objective seriousness of the offence?
  • What weight should be given to mitigating factors, including the early guilty plea, the defendant's cooperation, and its remediation steps?
  • What weight should be given to aggravating factors, including the seriousness of the worker's injuries?
  • What discount applied for the early plea of guilty?
  • How should the court approach capacity to pay?
  • How should prosecution costs be dealt with?

Decision

The court assessed the objective seriousness of the offence as significant. The company had been specifically informed, just weeks before the incident, by an internal assessor and by SafeWork NSW itself about the need for adequate fall protection. It obtained a scaffolding quote but did not proceed with scaffolding. It also failed to develop a proper anchor point plan and failed to implement a site-specific Safe Work Method Statement (SWMS) for the particular job. These failures occurred against a backdrop of knowledge about the risks involved.

The court considered the victim impact statement of Mr Rundle, a 41-year-old father of six children, four of whom have disabilities. Mr Rundle described persistent and severe nerve pain from his foot to his hip, reliance on a wheelchair, the breakdown of a relationship, and significant social isolation. The court treated the serious physical and personal consequences to Mr Rundle as relevant to the sentencing exercise.

On mitigating factors, the court took into account the early guilty plea, the defendant's cooperation with the investigation, and steps taken toward remediation. The court determined that an appropriate fine before any discount was $400,000. Applying a 25% reduction for the early guilty plea, the court imposed a fine of $300,000.

Pursuant to s 122(2) of the Fines Act 1996 (NSW), the court ordered that 50% of the fine be paid to the prosecutor. The parties had agreed on a costs order in favour of the prosecutor.

Orders Made

  • Newcastle Roofing Professionals Pty Ltd convicted on 29 April 2025.
  • Fine of $300,000 imposed (reduced from $400,000 by 25% to reflect the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
  • Newcastle Roofing Professionals Pty Ltd to pay the prosecutor's costs.

Key Takeaways

  • The District Court confirmed that a defendant's pre-existing awareness of a specific risk, including through internal recommendations and direct engagement with the regulator, is a significant factor in assessing the objective seriousness of a work health and safety offence.
  • A 25% discount on the fine applied for an early guilty plea, consistent with the sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half of the financial penalty be paid directly to SafeWork NSW as prosecutor, a mechanism available in work health and safety prosecutions.
  • Serious and ongoing physical injury to the worker, combined with significant personal consequences affecting family life and relationships, informed the court's assessment of the harm caused by the offence.
  • Obtaining quotes for compliant safety measures but declining to proceed with them, in this case after the customer declined to meet the additional cost, did not relieve the duty holder of its obligations under the WHS Act.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 79, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432