Citation: SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 3) [2026] NSWDC 15
Court: District Court of New South Wales (Criminal jurisdiction)
Date: 24 February 2026
Judge(s): Scotting DCJ
Background
This sentencing decision concerns two corporate defendants within a vertically integrated meat and smallgoods business (referred to as "the Group") that raises livestock and processes it into meat, smallgoods, and pet food products. The first defendant, the General Partner, held a 1% interest in a limited partnership that operated a retail shop and smallgoods factory at Pendle Hill. The second defendant, the Labour Hire Company, employed workers who were assigned to work under the General Partner's direction and control. Both entities were controlled by the same family and shared common directors.
On 22 May 2021, three workers employed by the Labour Hire Company were instructed to clean solar panels on the roof of the shop premises. They were told to work between rows of panels, stay at least two metres from the roof edge, and avoid skylights because the perspex covers could not support their weight. After a supervisor checked on the workers and left to attend to other duties, one of the workers fell approximately eight metres through a skylight to the concrete floor below. He suffered very serious head and traumatic brain injuries, spent nearly five months in intensive care, and ultimately returned to Sri Lanka where he continues to require high-level hospital care.
Both defendants pleaded guilty to offences under section 32 of the Work Health and Safety Act 2011. The General Partner faced two charges — one for breaching its primary duty of care to workers under section 19(1) and another for breaching its duty as a person with management or control of a workplace under section 20. The Labour Hire Company faced one charge for breaching its section 19(1) duty. Each offence carried a maximum fine of $1,766,130. The court was required to determine the appropriate sentences, taking into account the objective seriousness of the offending, relevant aggravating and mitigating factors, the defendants' capacity to pay fines, and whether a costs order should be made.
Legal Issues
- What was the objective seriousness of the offences committed by each defendant?
- What aggravating and mitigating factors applied to each defendant's sentencing?
- What weight should be given to the guilty pleas, the defendants' cooperation with the investigation, expressions of remorse, absence of prior convictions, and remedial steps taken after the incident?
- What was the capacity of each defendant to pay a fine, and how should that affect the quantum of any penalty?
- What was the appropriate fine for each offence, accounting for the totality principle (particularly for the General Partner facing two charges arising from the same incident)?
- Whether it was just and reasonable to award costs to the prosecutor, and if so, in what amount?
Decision
Objective seriousness and culpability: The court assessed the offending as serious. The defendants had failed to take multiple reasonably practicable steps to eliminate or minimise the risk of a fall from height — a well-known and frequently publicised workplace hazard. Neither defendant had conducted any documented risk assessment for the task of cleaning solar panels, despite the presence of unprotected skylights and no permanent edge protection on the roof. The court noted that extensive published guidance material on the risks of working at heights and falls through skylights was available well before the incident, but the officers of both defendants were entirely unaware of it. The fact that cleaning the solar panels was described as an infrequent task did not diminish the seriousness, given the catastrophic nature of the risk. The court found in the earlier primary judgment that the defendants should also have conducted an adequate risk assessment as a reasonably practicable step.
Mitigating factors: Both defendants entered guilty pleas, which the court afforded a discount in accordance with sentencing principles, including the utilitarian value of the pleas in saving court time and resources, though the timing and circumstances of the pleas were considered in calibrating that discount. The defendants cooperated with SafeWork NSW's investigation and police inquiries, producing documents and information when requested. The court accepted that the defendants expressed genuine remorse through the evidence of their director, who acknowledged that more could have been done and took personal responsibility. Importantly, substantial remedial action was taken promptly after the incident: permanent metal covers were installed over skylights, guardrails and anchor points were fitted to the roof, access was restricted through a permit system, safe work method statements were developed, and an external safety consultant was engaged to review and upgrade all WHS policies and systems. Neither defendant had any prior convictions.
Capacity to pay and totality: The court considered the financial position of both defendants in determining the appropriate fines. For the General Partner, which faced two charges arising from the same underlying incident, the court applied the totality principle from Pearce v The Queen to ensure the aggregate penalty was just and proportionate, and did not result in a crushing sentence disproportionate to the overall criminality. The court was mindful that the two charges under sections 19(1) and 20 reflected overlapping but distinct duties, both of which were breached by substantially the same failures.
Costs: The court also addressed whether it was just and reasonable to make a costs order in favour of the prosecutor. Drawing on the principles established in Latoudis v Casey and relevant statutory provisions, the court considered the conduct of the proceedings, the guilty pleas, and the overall circumstances in determining the appropriate costs order.
Orders Made
- The General Partner was convicted and fined for each of the two offences (breach of section 19(1) duty and breach of section 20 duty), with the quantum of each fine and the aggregate penalty reflecting the totality principle.
- The Labour Hire Company was convicted and fined for the single offence of breaching its section 19(1) duty.
- A costs order was made in favour of the prosecutor (SafeWork NSW).
Note: The full text of the judgment as provided was truncated and did not include the specific dollar amounts of fines or the precise costs order. Readers should consult the complete judgment for the exact penalties imposed.
Key Takeaways
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The District Court rejected any suggestion that the infrequency of a task diminishes WHS obligations. Where a task exposed workers to a risk of death or serious injury, such as working at heights near unprotected skylights, PCBUs were required to have documented risk assessments and safe work procedures in place regardless of how often the task was performed.
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Ignorance of published guidance material does not excuse a failure to identify and manage known risks. The Court found that both defendants' officers were entirely unaware of extensive, publicly available guidance on the risks of working on roofs and falls through skylights, and treated this lack of awareness as contributing to the seriousness of the offending rather than as a mitigating factor.
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Overlapping WHS duties under sections 19 and 20 of the Act apply concurrently, and each duty holder must independently ensure compliance. Both the host employer (the General Partner) and the Labour Hire Company were prosecuted and convicted, with the Court holding that a labour hire company cannot simply defer to the host's systems of work without satisfying itself that adequate safety measures are in place.
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Although the defendants' substantial post-incident remedial steps (including physical safety improvements and systemic WHS reforms) were acknowledged as mitigating factors in sentencing, the District Court held that these measures did not negate the seriousness of the original failures, particularly given the devastating and permanent injuries suffered by the worker.
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Where a PCBU faced multiple charges arising from the same set of facts, here breaches of both sections 19(1) and 20, the Court applied the totality principle to ensure the aggregate penalty was proportionate to the overall criminality, consistent with Pearce v The Queen.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 20, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Fines Act 1996 (NSW)
- Partnership Act 1892 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Legal Profession Uniform Law Application Act 2014 (NSW)
Key Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Latoudis v Casey (1990) 170 CLR 534
- Bulga Underground Operations Pty Ltd v Nash (2016)