Citation: [2026] NSWDC 80
Court: District Court of New South Wales (Criminal)
Date: 1 April 2026
Judge(s): Russell SC DCJ
Background
Customconstruction Pty Ltd ("Customconstruction") was the principal contractor for a residential renovation and extension project at Avalon Beach, NSW. It engaged Wrigley Metal Roofing Co Pty Ltd ("Wrigley") as a subcontractor to carry out metal roofing and cladding works on the site. Separately, a scaffolding company had been engaged to install prefabricated steel modular perimeter scaffolding around the extension, which was handed over in May 2022 with a certificate stating it was safe for use unless altered.
On 25 July 2022, Mr Angus Hoskins — an apprentice roof sheeter employed by Wrigley who was nearing the end of his apprenticeship — accessed the roof area between the existing dwelling and the extension without being instructed to do so. He traversed an unsecured plank positioned at approximately 3.8 metres above ground level, running from the scaffold to the adjoining roof. The director of Wrigley observed Mr Hoskins on the wet, dewy roof and told him to come down because it was unsafe. Mr Hoskins then attempted to descend by climbing down the outside of the scaffold. He slipped and fell approximately 3.8 metres onto concrete below, suffering severe injuries including cerebral haematomas, skull and facial fractures, bilateral pneumothoraxes, and pulmonary contusions.
Customconstruction pleaded guilty to a single offence of failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Hoskins to a risk of death or serious injury contrary to s 32 of the Act. The maximum penalty for the offence was a fine of $1,860,843. The proceedings concerned sentencing for this offence.
Legal Issues
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Objective seriousness of Customconstruction's breach of its WHS duty, having regard to the nature and extent of the risk created and the measures that could reasonably have been taken to eliminate or minimise it.
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Mitigating and aggravating factors to be weighed in sentencing, including the guilty plea, any cooperation with investigators, the defendant's prior record, and any expression of remorse.
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General and specific deterrence — the appropriate weight to be given to deterring both the defendant and the wider construction industry from similar failures.
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Capacity to pay the appropriate penalty, assessed in light of the defendant's financial circumstances.
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Parity — whether the sentence should be consistent with penalties imposed in comparable WHS prosecutions, including the related prosecution of Wrigley (the subcontractor).
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Costs — whether Customconstruction should be ordered to pay the prosecutor's costs, including reserved costs from an earlier interlocutory application.
Decision
The Court found that the offence was of significant objective seriousness. The risk to which Mr Hoskins was exposed — a fall from height of approximately 3.8 metres — was a risk of death or serious injury, as tragically demonstrated by the severity of the injuries actually sustained. The Court identified multiple failures by Customconstruction as the principal contractor: it had altered the scaffold without engaging a licensed scaffolder, it had not ensured the scaffold was reassessed after those alterations, it had permitted an unsecured plank to serve as the means of access between the scaffold and the roof area, it had failed to develop or implement a site-specific Safe Work Method Statement for the high-risk construction work, and it had failed to ensure that workers used only safe methods of access to the roof and that appropriate safety measures were in place before roof areas were accessed. These omissions were made more serious by the fact that guidance materials — including the Managing the Risk of Falls Code of Practice and the Guide to Scaffold Inspection and Maintenance — were readily available and clearly applicable.
In assessing mitigating factors, the Court gave appropriate weight to Customconstruction's plea of guilty, which was entered before trial and entitled the defendant to a discount on sentence under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court also considered the defendant's cooperation and any expressions of remorse or remedial action. However, these mitigating considerations were weighed against the seriousness of the duty failures, particularly given Customconstruction's role as principal contractor with overarching responsibility for safety at the site. The Court noted the importance of both general deterrence — sending a clear message to the construction industry about the consequences of failing to manage fall risks — and specific deterrence directed at Customconstruction itself.
The Court had regard to parity with the sentence imposed on Wrigley (the subcontractor employer) in the related proceedings of SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434, while recognising that Customconstruction's role as principal contractor carried its own distinct responsibilities. The Court also assessed Customconstruction's capacity to pay the penalty, consistent with s 6 of the Fines Act 1996 (NSW), taking into account the company's financial circumstances. On costs, the Court considered both the general costs of prosecution and reserved costs from an earlier interlocutory application (SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148).
(Note: The full text of the judgment was truncated and accordingly the precise quantum of the fine and the full detail of the Court's reasoning on each factor, including the exact discount applied for the guilty plea and the final costs orders, cannot be confirmed from the available text.)
Orders Made
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Customconstruction was convicted of the offence under ss 19 and 32 of the Work Health and Safety Act 2011 (NSW).
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A fine was imposed (the precise amount is not available from the truncated judgment text, but was determined with reference to the maximum penalty of $1,860,843, discounted for the guilty plea and assessed against the defendant's capacity to pay).
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Orders were made in relation to prosecution costs, including the reserved costs from the interlocutory application.
(Practitioners should consult the full judgment for the precise quantum of the fine and the detailed costs orders.)
Key Takeaways
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Principal contractors bear substantial WHS responsibilities for subcontractor workers. The District Court found that Customconstruction's failure to manage risks arising from its own alterations to the scaffold, and its failure to ensure safe access systems were in place for all workers on site, was central to the offence. The decision confirmed that principal contractors cannot discharge their duties simply by engaging subcontractors and leaving safety to them.
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Altering scaffolding without engaging a licensed scaffolder constituted a serious failing. Where scaffold components were removed to facilitate other works without proper reassessment or reinstallation by a competent person, the Court held that this directly contributed to the risk. Duty holders must ensure scaffold integrity is maintained whenever modifications are made.
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Under the WHS Regulation, the absence of a site-specific SWMS for high-risk construction work was treated as a significant omission. Neither the principal contractor nor the subcontractor had a Safe Work Method Statement identifying hazards, risks, and control measures for high-risk work, and the Court clearly regarded this as aggravating the objective seriousness of the offence.
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Relevant SafeWork publications served as a practical benchmark against which compliance was assessed. The District Court referenced the Managing the Risk of Falls Code of Practice, the Safe Work on Roofs Information Sheet, and the Guide to Scaffold Inspection and Maintenance as readily available resources that Customconstruction should have consulted and followed.
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In multi-party WHS prosecutions, parity with co-offenders was relevant but not determinative. The Court considered the sentence imposed on Wrigley while recognising the distinct nature of Customconstruction's duties as principal contractor, confirming that parity arguments must be assessed having regard to the differing roles and responsibilities of each duty holder.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Key cases cited:
- SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] N