Inspector Carmody v Luke Tsougranis

Inspector Carmody v Luke Tsougranis - [2003] NSWIRComm 281 - NSWIRComm 2003 case summary — Zoe

[14]

9 In support of this approach, the following matters were relied upon: (a) Mr Agapiou was the proprietor and had overall control of the two premises in Bourke Street, Redfern; (b) he had constructed the extension at No 728 and did not use framing ties or adequate framing ties to connect the cross walls or to the wall that collapsed, and he was in the best position to know or to be able to find out the relevant facts about the wall including the absence of bonding; (c) the defendant did not know about the earlier renovations at No 728 and he could not reasonably have been expected to ascertain that information if not otherwise told. Mr Smee's expert report stated that the defendant could reasonably assume that the wall was adequately connected and that the foundation was adequate and this evidence was broadly accepted by the Court except where the assumptions were contradicted by the evidence; (d) Mr Agapiou was responsible, as the owner/builder for the demolition work that was carried out between March and May 1998 at the premises. He did not have qualifications to carry out that demolition work and did not consult any professional about the demolition. The expert evidence was that he should have taken advice and he had been told by the architect that he needed council approval for the demolition work, yet Mr Agapiou did nothing; (e) acting as his own demolisher, Mr Agapiou removed existing structures which provided lateral support for the wall. He did not provide any temporary support to the walls such as to leave it in an unstable condition; (f) on sentence, Kavanagh J found that Mr Agapiou: 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 the construction site. The risk to safety was in place because of the activities of the defendant. (g) Mr Agapiou admitted by his plea of guilty that he failed to ensure that the builders and Mr Tsougranis were advised that the wall was not fully bonded and was not a party wall fully bonded into the cross-walls of the adjoining premises. Mr Agapiou was on site at the relevant times; (h) Mr Agapiou admitted by his plea of guilty that he did not instruct the builders to provide bracing or other means to laterally support the rear northern boundary wall before conducting works including any excavation work adjacent to it and further, between 8 May 1998 (when the council approved the building works) and 3 September 1998, he failed to provide any structural detail to the council for the purposes of issuing the building approval.

[21]

16 In the context of assessing the seriousness of the offence, the following paragraphs of the judgment are relevant: [210] … Mr Tsougranis' duty was to ensure the safety of persons not his employees, who were working at the site. This was a building site and it was obvious that a number of contractors as well as the builders were likely, from day to day, to be in attendance. Mr Tsougranis could not ensure their safety in relation to this wall by making assumptions, even if they were based upon his professional experience as to the nature of such a wall. This wall was quite large and its surrounding supporting structures had been removed. Mr Tsougranis made assumptions about the depth of its embedment in the soil and its support, assumptions about support for the wall in the adjoining property without checking, and assumed that no excavation was required, but did not ask the owner/builder or the builder about that matter. A wall that had all its surrounding building support removed and relied on embedment in circumstances where he could not be sure that the wall was properly bonded or tied left Mr Tsougranis in a position where he could not ensure that the wall was stable. There was no suggestion that supporting the wall by bracing or propping involved an unwarranted or heavy expense. Indeed, the wall did not have to be braced at all if Mr Tsougranis had placed a note on the plan simply stating that any excavation or trimming of the foundation would impair the stability of the wall. Such a note could have required consultation before work on the footings commenced. [211] This was not a case where, in the exercise of his professional judgment, Mr Tsougranis did not have to consider the stability of the wall. He readily accepted that the erection of another structure near this existing freestanding wall required him to give consideration to the stability of that wall. He had turned his mind to that issue but had satisfied himself on the basis referred to above, that its stability was not a problem. Having applied his mind to the problem and having resolved the issue to his satisfaction based on the various assumptions referred to earlier, Mr Tsougranis in fact failed to ensure the safety of those who might be working on the site during the course of the construction work.

[27]

21 It is interesting that the owner/builder submitted that consideration had to be given to the defendant's level of culpability for the breach and it was suggested that a number of parties, who by their acts or omissions, contributed to the collapse of the wall. Firstly, it was submitted that the engineer (Mr Tsougranis) had contributed to the collapse of the wall by providing a footing designed without reference to the collapsed wall. The builder was said to contribute to the accident by allowing footings to be excavated without checking the stability of the wall which was freestanding and requiring temporary support. It was also suggested that the council bore some responsibility. The council was said to have had an opportunity to detect the existence of the unstable wall when it conducted "the environmental comment" which was dated April 1998. Following these submissions, her Honour stated: [24] The facts reveal that the defendant had no qualifications nor made any enquiries 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 … [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 that 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 of 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 … 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 or omission created that risk to safety.

[29]

23 After allowing a discount of 15 per cent for the utilitarian value of the owner/builder's plea of guilty, consideration was also given to the financial status of the defendant and that Mr Agapiou was now working four days a week as a driver earning $450. These matters appeared to play some role in her Honour finally arriving at a penalty of $22,500. 24 In relation to the application of the parity principle, I repeat the following paragraphs from the judgment in WorkCover Authority of New South Wales (Inspector Dall) v D F McCloy Pty Ltd [2002] NSWIRComm 51: 37. Although D F McCloy Pty Ltd and R & D Enterprises Pty Ltd were not, strictly speaking, charged with the same offence, I believe it is appropriate to treat them as co-offenders and to apply the principles of parity in sentencing when dealing with co-offenders. The offence for each defendant is essentially the same; the charges are brought under different sections of the Occupational Health and Safety Act in recognition of their status in relation to the employees who were performing the work, although the identification of the relevant detriment to safety was largely indistinguishable . It was acknowledged by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 that: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same penalty … However, it has also been said that courts should not aim at achieving uniformity of sentence, rather what they should aim at is uniformity of approach (per Lord Lane as cited in R v Bibi (1980) 2 CrimApp R (S) 177 at 179). It has also been said that there is a danger in taking too far the idea of co-offenders receiving the same sentence: that approach may apply if all other things are equal (Doan (Chau Thi Bao) unreported, NSW CCA, 27 September 1996); Steele (Robert Ernest), unreported NSW CCA 17 April, 1977); O'Brien (Edward Paul), unreported NSW CCA, 7 April 1997. 39. It is now clear that parity in sentencing is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. Different criminal histories and custodial patterns may justify a real difference in the time each will serve in prison and like must be compared with like when applying the parity principle (Postiglione v The Queen (1997) 189 CLR 295 (at 303). This approach does not involve apportioning a total penalty as between persons said to be responsible for the occurrence of the accident. In Inspector Carmody v Consolidated Constructions Pty Ltd (2001 109 IR 316), Hungerford J, speaking of the error of that approach, stated: 48. I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co - offenders for the offence for which they have been respectively found guilty. As Mason J, as his Honour then was, commented in Lowe v R (1984) 154 CLR 606 at pp 610 - 611): Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 49. Brennan J added in that same case (154 CLR at p 617): The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly, the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. 50. In Postiglione v R (1997) 189 CLR 295 at 301, Dawson and Gaudron JJ cited the above comments from Lowe with approval and emphasised that the parity principle was concerned with treating like with like to do equal justice, but 'in the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances'. I see no support in the parity principle, or in sentencing principles generally, which would support the notion suggested here that a sentence should be fixed at a level larger than what it otherwise would have been for the offence because other persons may also have committed an offence in relation to the particular incident.