Insp Carmody v George Agapiou

HEARING DATES: 09/21/2001 DATE OF JUDGMENT: 11/01/2001

PROSECUTOR: Mr P.M. Skinner of counsel Solicitors: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr B.D. Hodgkinson of counsel Solicitors: Uther Webster & Evans

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Thur 1 November 2001

IRC4370 of 2000 INSPECTOR MARTIN CARMODY v GEORGE AGAPIOU Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm268

1 This is a prosecution under the provisions of s17(1)(a) of the Occupational Health and Safety Act 1983. It is alleged the defendant: On 3 September 1998 at a construction site premises situated at 730 Bourke Street, Redfern, in the State of New South Wales, ... being a person who had to any extent control of non-domestic premises to wit, the aforesaid premises, which had been made available to persons (not being the defendant's employees) as a place of work and, in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoka and Carl Hamilton, for the purpose of carrying out renovation to the existing structure and addition of a new structure at the rear of the existing structure contrary to s 17(1)(a) of the Occupational Health and Safety Act, 1983, failed to ensure that the premises were safe and without risks to health.

2 The particulars of the breach (per the Agreed Statement of Facts) were as follows: 11. The defendant failed to ensure that the builders and the engineer were advised that the rear northern boundary wall of the premises which remained was: (i) not fully bonded into the cross wall at the rear of the front section of the premises to which it abutted; (ii) was not a party wall fully bonded into the cross walls of the adjoining premises. 12. The defendant did not instruct the builders to provide bracing or other means to laterally support the rear northern boundary wall prior to conducting the works including any excavation works adjacent to it. 13. On 3 September 1998 the defendant did not maintain the existing building and in particular the rear northern boundary wall in a stable condition in that he did not provide any proper bracing or other means to laterally support it whilst works, including excavation works, had been and were continuing to be carried out immediately adjacent and parallel to it. 3 The defendant entered a plea of guilty to the charge.

4 There was an Agreed Statement of Facts as to the breach which relevantly reads as follows: 2. At all material times GEORGE AGAPIOU ("the defendant") of 18 Solander Street, Matraville in the state of New South Wales was a person with control to any extent of non domestic construction site premises situated at 730 Bourke Street, Redfern in the state of New South Wales. 3. At all material times on 3 September 1998 the defendant made the aforementioned premises available to persons (not being the defendant's employees) as a place of work, and in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoka and Carl Hamilton, for the purpose of carrying out renovation to the existing structure and addition of a new structure at the rear of the existing structure. 4. The defendant was at all material times a registered proprietor of the lot upon which premises were erected at 730 Bourke Street, Redfern in the state of New South Wales hereinafter referred to as "the premises". 5. On 8 May 1998 the defendant obtained consent from South Sydney City Council to conduct certain works at the premises involving renovations to an existing structure, demolition of part of the existing structure and erection of a new structure in accordance with plans and specifications, subject to certain conditions stipulated by the Council. 6. Demolition of the previously existing rear section of the premises was carried out by or on behalf of the defendant substantially between March and the beginning of May 1998 inclusive. 7. The defendant did not have any qualifications to carry out demolition work. 8. The plans and specifications called for retention of the northern rear boundary wall of the rear structure and this was excluded from the demolition works which had been conducted by or on behalf of the defendant prior to 8 May 1998. 9. Between approximately April 1998 and June 1998 the defendant engaged Michael David Papaianni and Carl Mark Hamilton ("the builders") to carry out certain works required in accordance with the Council approved plans and specifications for the premises. 10. The defendant engaged Luke Tsougranis, an engineer, of Luke Tsougranis & Associates ("the engineer") in or around late May or early June 1998 to provide structural advice, directions and drawings for use by the builders with respect to the conduct of the works specified in the Council approved plans and specifications. . . . 14. On 3 September 1998 the rear northern boundary wall toppled and caused fatal injuries to Jim Zaronias and serious injuries to the builder, Michael David Papaianni, when it fell onto them.

5 The prosecutor relied upon a factual report prepared by an inspector of the WorkCover Authority, Inspector Martin Carmody. The prosecution also relied upon an engineering report by Mr Chris Turner and photographs of the site taken on the day of the accident, 3 September 1998. They also relied upon a record of interview with a Mr Stephen Kourepis, architectural draughtsman.

6 Mr P.M. Skinner of counsel appeared for the WorkCover Authority of New South Wales as prosecutor. Mr B.D. Hodgkinson of counsel appeared for the defendant.

7 The defendant tendered a statement. He then entered the witness box and relied upon the contents of that statement. Also tendered in his case were some references as to reputation and character, and a medical report of Dr Rodney Juratowitch dated 12 December 2000.

8 It is agreed the maximum penalty at the time of a breach of the Act by an individual was $55,000.

9 The defendant is charged under s17(1)(a) of the Occupational Health and Safety Act 1983. The section covers persons in control of workplaces etc used by non-employees to ensure health and safety. It states: 17(1) Each person who has, to any extent, control of - (a) Non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, ... shall ensure that the premises . . . are or is safe and without risks to health. 10 The court must first assess the nature and quality of the offence, that is the objective seriousness of the offence. As was held by the Full Bench in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'.

The Full Bench notes (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively.

11 An analysis of the circumstances of this breach reveals the defendant, a local shopkeeper, owned adjoining properties (one with his sister). He determined as an owner/builder to renovate one of those properties numbered 730 Bourke Street, Redfern. The property was a two-storey residential terrace dwelling. The residential dwelling was attached on the left side to another two-storey residence known as the corner shop, which was located at 728 Bourke Street. The defendant ran, at the time, the corner shop. The defendant determined to renovate the property at 730 Bourke Street.

12 In March/April 1997 the defendant sought the advice of architectural draughtsman, Mr Stephen Kourepis. Mr Kourepis took measurements, prepared some draft drawings and completed plans in early March 1998. The defendant signed an application to South Sydney Council and lodged it with South Sydney Council in March 1998.

13 However, the defendant had determined to do his own demolition work. He removed substantial structures from the back of the house. Some of the structure which was removed was of a two storey high construction. In removing these upstairs and downstairs rooms and completely demolishing the back of the terrace the defendant left standing a wall, unattached, down into the backyard. It was 6m long by 6.3m high of double brick construction rendered on both faces and some 275mm thick. It acted as a boundary wall adjoining the length of a neighbour's terrace but was not a common wall. It stood on a sandstone block strip footing. After demolition of the extension, the wall was left without support from the roof which he had removed. The floor structures on the ground he had also removed. The floor structure on the first floor had been removed, as had the return walls. That left the long boundary wall free-standing without support. No temporary lateral support was provided to the wall after the demolition.

14 The demolition work had been completed between March and May 1998 (see Agreed Statement of Facts) The defendant says: At the last meeting I took Kourepis to the rear of the property to show him the demolition works that I had undertaken. At the time the plans were drafted Kourepis and I had discussions about retention of the northern brick wall ("the wall"). Kourepis said he would go to the council to confirm that the wall could stay. After his meeting with the council he advised me the wall could remain and the plans were drafted accordingly. It appears from the evidence much of the demolition work was in fact completed by March 1998 when the plans were lodged. The plans for the renovation were approved by South Sydney Council on or about 8 May 1998.

15 Following the approval of the Council in May 1998, the defendant contracted with a Mr Luke Tsougranis, a consulting surveyor, to draw up structural plans. These were to include plans for the laying of a concrete slab for the back extension.

16 In late July 1998 the defendant then contracted, as the owner/builder, with Mr Michael Papaianni and Mr Carl Hamilton to construct the extension. Mr Michael Papaianni is a licensed builder and Mr Carl Hamilton is a carpenter. They began work on the site on 5 August 1998.

17 The builder and carpenter demolished, in the inside of the terrace, an internal wall, removed some stairs, removed a wall between the lounge room and the front area and inserted a steel beam into the property. The whole of the internal site was levelled. The inside of the house then required the pouring of a concrete floor. It was determined the concrete pour for the inside floor could be done at the same time as the foundations for the planned back extensions were poured.

18 Accordingly, a few days before 3 September 1998, digging commenced on the trenches required for laying the foundations for the back extension. Assisting the carpenter and the builder was a labourer, Mr Jimmy Zaronias. The excavation of the new footings for the renovation were carried out alongside the freestanding wall over the weeks before the collapse. This removed the side support for the wall provided by the soil around the existing sandstone footing of the wall. Work continued in the back yard until 3 September 1998. At approximately 12.45pm on that day, the wall collapsed and fell into the property. Mr Zaronias, the labourer, was buried beneath the collapsed wall. He died as a result of his injuries. Mr Michael Papaianni, the builder, was also injured.

19 A number of detailed explanations were given, in evidence, as to the reason for the collapse of the wall. The engineer's report says failure occurred through: (a) Overload of the weakened footing as the sand supporting the footing moved into the excavation, causing the footing and wall to rotate into the site; or (b) The wind load from the north, being sufficient to overcome the support provided by the weak connections to number 728 and the wall rotated into the site; or (c) A combination of the above.

A combination is the most likely mechanism, as weakening the foundation on the inner side also permits a rotation soil failure into the site. Also the brick ties to number 728 had pulled out leaving the nails horizontal, thus showing the wall had rotated, rather than in initially settling vertically on failed footings, until breaking the connections providing horizontal support. 20 In his capacity as an owner/builder and, acting as his own demolisher, the defendant removed existing structures which had provided lateral restraint for the wall. He did not provide any temporary support to the wall such as to leave it in a stable condition. The defendant did not have any qualifications as a demolisher, nor seek any qualifications, nor seek any professional advice before he acted to pull down the back of the terrace.

21 While not denying the defendant's obligations under the Act and accepting its obligations through the plea of guilty, the defendant submits the court, in viewing the objective seriousness of this offence, must give consideration to the defendant's level of culpability for the breach. Mr Hodgkinson submits there were a number of parties who, by their acts or omissions, contributed to the collapse of the wall. He submits this should be taken into account in assessing the level of culpability of the defendant.

22 The court in its assessment of the culpability of this defendant is reminded of the caution delivered by Walton J, Vice President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor 95 IR 382 (at 437) when he referred to a possible unfairness: . . . that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of the contribution to an accident is not undertaken.

23 Mr Hodgkinson submits the engineer contributed to the collapse for providing a footing design without reference to the collapsed wall - either with instructions on how to construct the new footings without destabilising the wall or requiring the owner/builder to check on the wall stability and the foundation step and to take measures to maintain its stability during the work. He also submits the builder contributed to the accident for allowing footings to be excavated without checking of the stability of the wall which was free-standing and requiring a temporary support to it. He also submits the Council bears some responsibility. Photographs demonstrate the rear demolition was complete and the wall remained free standing. He submits the Council had the opportunity to detect the existence of the unstable wall when it conducted the "environmental comment" dated 17 April 1998. It had the photograph of the site before it in this consideration.

24 The facts reveal that the defendant had no qualifications nor made any inquiries as to the safety requirements to carry out demolition work. He failed to ensure the wall which he left standing without structural support was not properly braced. He exposed persons on his premises, for the purposes of conducting building work to risk to their safety. Further, as Maidment J said in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, CT93/1062, 26 November 1993) (at 7): . . . it needs to be remembered that the legislation . . . requires positive preventative steps being taken to ensure that workers are afforded safe working environments . . . The obligation is absolute for any person who has control of premises which have been made available as a place of work, such as this construction site to provide a safe working environment.

25 The defendant submits he sought professional advice from the Council and from builders and surveyors to assist him as an owner/builder on the construction site. The facts reveal however he sought no advice related to his activities as a demolisher. The defendant assumed none of his obligations in his activities as a demolisher. He did not ensure he left his premises safe and without risk. There was left in place a serious risk to the safety of any person entering this construction site. The risk to safety was in place because of activities of the defendant. There is no evidence before me the defendant was particularly sensitive to and conscious of safety considerations (see Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131) in his own activities. Whatever actions were taken by the Council or other trades on this site, they were acts performed in circumstances where there was no recognition of a pre-existing risk to safety. The defendant by his act and or omission created that risk to safety.

26 The consequences of this breach are measured in the terms enunciated by Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 (at 204): . . . where a fatal injury had occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious. Mr Zaronias died and Mr Papianni was seriously injured. The well acknowledged words of Hill J in Tyler v Sydney Electricity 47 IR 1 (at 5) are apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant as are the measures of gravity of the breach itself and the measure of culpability. 27 I find further this breach reflects an element of "reasonable foreseeability". As Walton J, Vice President, in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at (at 27): Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and University of Sydney (at 16).

28 There was a serious potential risk flowing from this breach. A freestanding brick wall, 6m long by 6.3m high left unattached provided a serious risk to safety. I find the nature and quality of this breach was most serious. 29 A number of considerations as to the subjective elements of the offence have been placed before the court in its consideration as to penalty. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474 the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench quoted with approval the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) was cited (at 474) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

30 Mr Agapiou expressed sincere regret. Psychiatric evidence reveals he has suffered psychologically since the accident and has carried symptoms of anxiety with associated episodes of panic and lack of sleep. He sought psychiatric assistance within 20 days of the accident. He comes from a happy home environment and lives a very law abiding life. He stands in the community with a fine reputation. Personal references reveal, as the local shopkeeper, he was highly regarded in his community and was perceived as reliable, warm hearted and conscientious. The shop was perceived as a popular focus point of contact in his community. He has however now closed the business asserting part of the problem for poor trading was his post-incident depression.

31 As to the effect of expressed contrition on penalty, Spigelman CJ in R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383 [at 139] relied on the authority of R v Bishop (unreported, Court of Criminal Appeal, 23 September 1996) where Hunt CJ at CL with whom Smart and McInerney JJ agreed said: The degree of contrition evidenced by a plea of guilty depends to a large degree upon whether or not it resulted from a recognition of the inevitable. Where it is unlikely that guilt would have been discovered and established where it not for the prisoner's disclosures, a considerable degree of leniency will usually be extended to a plea of guilty and to a significant extent. Where guilt would inevitably be discovered and established whatever attitude is adopted by the prisoner, a plea of guilty does not evidence any particular degree of contrition, so that leniency will be extended for the plea of guilty only so far as there is a utilitarian benefit in the savings of the time and cost of a trial. None of this is to say that contrition cannot still be taken into account. All that is said is that the plea of guilty does not evidence such contrition. Spigelman CJ held [at 162]: . . . Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate.

32 In Inspector Vierow v Blue Water Boating Pty Limited [2001] NSWIR Comm79, Peterson J did not consider contrition to be an element of significance in the particular case being dealt with such as to justify a greater discount than 25%, (see Regina v Carter [2001] NSW CCA 245, 27 June 2001 per Howie J [at 13]. That approach appeared to have equal force in the consideration by Haylen J in Inspector Alwyn Piggott v Kennedy Cleaning Services Pty Ltd [2001] NSWIRComm243 (published 8 October 2001) [at 31].

33 However, I accept this incident and its tragic consequences have had a significant effect on the defendant. I accept this effect is a reflection of his remorse and contrition and will allow an element of mitigation as to penalty. 34 There can be a discount for the utilitarian benefit of entering an early plea of guilty to a charge. R v Thompson, R v Houlton was recently given consideration in R v Carter [2001] NSW CCA 245 where Barr and Howie JJ held (at 14): although the evaluation of the discount is a matter for the discretion of the sentencing Judge, there are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea, and therefore, the greater the discount. In a particularly difficult and complex matter, the early plea . . . may exceed the normal upper range of twenty-five per cent. Their Honours [at 16] further stated it was erroneous for a court when determining the utilitarian value of the plea to consider the fact the case against the defendant was very strong. The history of the prosecution is relevant. On 16 October 2000, two charges had been laid and were mentioned eight times before hearing. On 7 June 2001, agreement was reached between the parties and one charge was withdrawn; a plea of guilty was entered to this charge and an Agreed Statement of Facts was to be filed by 5 July 2001. These were not filed until 13 September 2001 although there is no evidence as to when they were agreed. Mr Hodgkinson submits this should be perceived as an early plea of guilty in the circumstances. The defendant relies on the view expressed in R v Neville [2000] NSWSC 841 (24 August 2000) where Adams J allowed a 20% discount for a plea entered saying [at 26]: after the case had been listed for trial but, bearing in mind the difficulties brought about by (the defendant's) mental illness, I think he should, nevertheless, receive a substantial utilitarian discount. The plea merely acknowledged the inevitable. This matter I find is distinguishable on the facts from that in Neville . I find there was some delay to the plea being entered but do not find evidence sufficient to persuade me the mental condition of the defendant affected that delay. I allow an element of discount for the utilitarian value of the plea but in the circumstances do not believe it should attract the full discount of 25%. In the use of the court's discretion I allow a discount of 15% for the utilitarian value of the plea.

35 The financial status of the defendant must also be given consideration. The defendant now works four days per week as a driver earning $450 per week. The defendant has also outlined for the court the costs incurred so far arising out of the incident.

36 The defendant does not submit he is impecunious. Evidence revealed he had at least part ownership of two properties and an average income from personal endeavour. The financial situation of a personal defendant was considered in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm39 (4 April 2000) [at 27] where Wright J held: As to the financial position of the defendants, it is to be accepted in terms of general sentencing policy that the means of a defendant are relevant. This consideration may, in appropriate cases, involve a careful examination of the means of the defendant, and consideration of the means of the defendant in fixing the amount of any penalty or fine: see for example Ferguson v Nelmac Pty Limited (at 206 - 207, 209); R v Rushby [1977] 1 NSWLR 594 at 598; WorkCover Authority of New South Wales v Overtop Pty Ltd (1998) 86 IR 319 at 335. This is, in any event, required by s6 of the F ines Act 1996 as it was by the predecessor provision in the now repealed s 440AB of the Crimes Act 1900. It is to be observed, however, that a consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty: Ferguson v Nelmac Pty Limited at 209; Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 at 51. See also R v Rahme at 86 - 87 and R v Sgroi at 201.

37 The level of penalty provides to the court some difficulty. The Occupational Health and Safety Act 1983 in intended to reflect the community's express demand for the delivery of circumstances which provide safe working. The defendant in his activities related to the demolition of his property gave no such consideration to the consequences of his action as to the delivery of safe working on his premises as a place of work. Deterrence both personal and general must be given weight in the sentence process (see John Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29).

38 The maximum penalty for this breach is $55,000. I have found the breach a serious breach of the Occupational Health and Safety Act 1983.

39 I take into account the objective seriousness in the matter of this offence but allow mitigation of penalty for the subjective features to the offence referred to above and take into consideration the discount allowed for the utilitarian value of the plea.

41 I fine the defendant in the sum of $22,500 with a moiety to the WorkCover Authority. The defendant is to pay the prosecutor's costs to be agreed or assessed. The WorkCover Authority is to negotiate with the defendant for time to pay.

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