Breaches of work health and safety legislation can have serious, and in some cases tragic, consequences. The seriousness of the offences can result in criminal sanctions for the offender. Where breaches of the legislation have been found, courts must weigh up various factors when determining what sanctions should be imposed. The recent decision by the District Court of New South Wales in Safework NSW v Landmark Roofing (No 2) [2020] NSWDC 420 provides an excellent reminder of the factors which the court must take into account when sentencing offenders.
Facts
On 8 March 2018, Brayden Asser, a first year apprentice roof plumber, was working with another on the roof of a commercial building in Newcastle. Mr Asser was wearing a safety harness but was not attached to a static line. During the course of undertaking his work, Mr Asser fell through a polycarbonate skylight and suffered severe injuries, from which he tragically later died.
On 15 May 2020, following a five day trial, Russell DCJ found Mr Asser’s employer breached its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and thereby exposed Mr Asser to a risk of death or serious injury contrary to s 32 of the WHS Act. The risk was to workers, in particular Mr Asser, suffering death or serious injury as a result of falling from height while working on the alcove roof. The matter then proceeded to a sentencing hearing.
