Inspector Hayes v 7 Star Glass Pty Ltd

Industrial Relations Commission (NSW)|1994-02-25|Before: Kavanagh J, Schmidt J

CITATION: Inspector Hayes v 7 Star Glass Pty Ltd [2010] NSWIRComm 174

PARTIES: Inspector Hayes (Prosecutor) 7 Star Glass Pty Ltd (Defendant)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - plea of guilty - fatal injury to employee - failure to provide safe system of work for particular task - task not risk assessed - failure to provide general training and instruction - failure to provide adequate supervision of task - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - remorse shown and contrition expressed - company still trading - company not without assets.

LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999

Cahill v State of NSW (Department of Community Services (No 4)) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 CASES CITED: Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994)

HEARING DATES: 11 August 2010, 7 October 2010

Mr A Cassenden of counsel (Prosecutor) WorkCover Authority of NSW LEGAL REPRESENTATIVES: Ms K Conti Mills of counsel (Defendant) Cambridge Law

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Inspector Peter Hayes of the WorkCover Authority of New South Wales against 7 Star Glass Pty Ltd (the defendant) under s 8(1) of the Occupational Health and Safety Act 2000 (the Act) by way of an Amended Application for Order. 2 It is alleged the defendant, on 28 September 2007, contravened s 8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees, and in particular Ashraf El'Hefny, contrary to section 8(1) of the Occupational Health and Safety Act 2000 .

In particular: (a) The health and safety of the employees of the defendant was put at risk of injury by sheets of glass falling on the employees when the employees were unloading the shipping container identified by markings as "PCIU 206060 5 22GI IC 87", "6.0m x 2.4m x 2.6m" ("Container"). The particulars of the acts or omissions of the defendant which failed to control or eliminate the risks are that: b. The defendant failed to provide and maintain a system of work for unloading glass sheets from the Container in that it failed to undertake measures as follows: i) The undertaking of an adequate risk assessment to identify the risks associated with unloading glass sheets from the timber crates prior to unloading, such as the risk of sheets of glass falling on the persons; ii) The undertaking of an adequate risk assessment to identify whether the contents of the Container i.e. the sheets of glass, case or end caps had unexpectedly moved during the transportation; iii) to have a documented Safe Working Procedure for the unloading of shipping containers such as storing of Containers on level ground, ensuring restraint of glass using straps or ropes prior to removing them from the Container, removal of whole cases of glass and end caps from the container before removal of individual sheets of glass; iv) To undertake a Job Safety Analysis for unloading glass from shipping containers using mechanical aids such as forklift, mobile crane and/or a glass grab. c. The defendant failed to prevent employees from unloading glass sheets from the Container before any identified risks to safety associated with unloading glass sheets from shipping containers were either eliminated or controlled, in that i) The defendant did not prohibit its employees from entering or removing in the fall zone of glass or end caps and walking between cases or end caps inside the Container when the glass was not restrained. d. The defendant failed to provide adequate supervision of its employees to ensure that its employees would not commence the unloading of glass sheets from the container in the absence of proper instructions, in that: i) Mr El'Hefny was not under the direct supervision of any person at the time of the incident. e. The defendant failed to provide adequate information, instruction, training to employees as was necessary in relation to unloading glass from the Container in that: i) The defendant did not provide any formal training to Mr El'Hefny on lifting, moving, storing glass and unloading shipping containers prior to the incident on 28 September 2007; As a result of the defendant's failures and omissions employees and in particular, Ashraf El'Hefny was placed at risk of injury and suffered .

As a result of the defendant's failures its employees were placed at risk to their health and safety, and in particular Ashraf El'Hefny was fatally injured. 3 The defendant pleads guilty to the charge. 4 Mr A Cassenden, of Counsel, appeared for the prosecution and Ms K. Conte Mills of Counsel, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts, eight photographs, Factual Inspection Reports of Inspector Hayes dated 10 October and 30 October 2007, the Prior Conviction Record of the company dated 28 May 2010 and an ASIC Company Search. 5 The defendant relied upon two affidavits of the defendant Mr Abbas Taher, Company Director dated 5 August 2010 and 1 October 2010. A number of relevant documents were attached to the affidavits including documents in relation to the upgrading of the system of work. 6 The Agreed Statement of Facts relevantly reads: 4. At all material times the defendant employed approximately 3 employees, including Mr El'Hefny and was conducting a business involving glass-glazing services including cutting glass to size and processing of glass. 5. At the time of the incident Mr Abbas Taher was the sole director and shareholder of 7 Star. 6. Mr El'Hefny had commenced employment at 7 Star Glass Pty Ltd two weeks before the incident occurred. His duties involved glass polishing, moving glass from shipping containers, loading glass onto trucks and unloading glass from timber packaging. He was 33 years old at the time of the incident. The incident 7. The incident occurred on Friday 28 September 2007 at approximately 1:40pm at Unit B15, 78 Gibson Avenue Padstow. This was the principal place of business of SF Manufacturing and Trading Sydney Pty Ltd (ACN 121 214 855) ("SFMT"). 8. On 28 September 2007 Mr El'Hefny attended the site and entered a shipping container identified by markings as "PCIU 206060 5 22GI IC 87", "6.0m x 2.4m x 2.6m" ("Container") which was located approximately 3.0m from the northern wall of Unit B15, 78 Gibson Avenue Padstow in the State of New South Wales ("premises"). The Container measured approximately 6.0 meters in length x 2.4 meters in width x 2.6 meters in height. The container was on an incline of approximately 2.8 to 3.0 degrees - the left hand side was lower than the right. Mr El'Hefny entered the container to unload the container of glass sheets which were contained in crates in the Container. 9. While Mr El'Hefny was inside the Container a timber crate containing glass sheets fell and trapped him against another timber crate. The weight of the glass sheets contained within the timber crate was estimated to have been approximately 1.43 tonnes. Mr El'Hefny was trapped between the crates for approximately one hour and fifteen minutes. He sustained fatal injuries. 10. Mr El'Hefny's injuries included fractured right ribs, right side Pneumothorax (hole in lungs) , fractured left wrist, Rhabdomyolysil (damage to muscles) lung failure and kidney failure. Mr El'Hefny was transported by ambulance to Liverpool Hospital on the day of the incident. Mr El'Hefny remained in the Intensive Care Unit on full life support until his death on 26 October 2007. 11. On the day of the incident, Mr El'Hefny had commenced work at the premises of 7 Star located at Unit 9/65 Marigold Street Revesby ("7 Star premises"). Mr El'Hefny completed his normal working duties throughout the morning. At approximately 12:00pm, Mr El'Hefny departed the 7 Star premises to drive to the premises of SFMT. The distance between the premises is approximately 4 kilometres. 12. On his way to the premises, Mr El'Hefny made a stop at home of Mr El Mir at 1/76 Ferguson Avenue Wiley Park. Mr El Mir then accompanied Mr El'Hefny to the Container at the premises. 13. On arriving at the premises, Mr El'Hefny opened the shipping container where there were five timber crates standing upright towards the rear of the Container. Each crate contained approximately 20 sheets of 10mm clear float glass. Each sheet measured approximately 1300mm x 2200mm x 10mm. The approximate weight of the glass in the timber crate was approximately 1.43 tonnes. 14. Mr El'Hefny requested Mr El Mir to provide assistance to remove the glass from the Container. Mr El'Hefny used a crowbar to remove one side of a timber crate, which was resting vertically on the left hand sidewall of the shipping container, approximately 2.2 metres from the rear wall of the container. Mr El'Hefny and Mr El Mir then removed approximately 20 sheets of glass from the timber crate and together they carried each sheet outside the Container, one on each side of each sheet of glass. Once outside the Container, they stacked the glass sheets on two pieces of timber support planks on the ground and leaned the glass sheets against the external wall of the premises. 15. Four timber crates remained standing in the Container. One crate identified by a '# 8' reddish colour number written onto the timber was resting on the left hand side of the internal wall of the Container. There were three other timber crates on the right hand side of the Container. There was a gap of approximately 1.14 metres between the timber crate on the left hand side and the nearest crate situated on the right hand side of the Container. 16. Mr El'Hefny removed a number of timber support planks that were holding the remaining four timber crates together to prevent movement during transit. Mr El'Hefny accessed the area between the timber crates in order to remove the timber frame of the crates. 17. Mr El'Hefny began to open the timber crate which was standing vertically at the rear of the container approximately 1.42 metres from the left hand side internal wall. That crate contained approximately 20 sheets of glass. Mr El'Hefny removed the first section of the timber crate cover. It appears that the timber crate split as he was removing the timber frame and a section of timber crate containing approximately 20 sheets of glass fell onto Mr El'Hefny trapping him against another timber crate. 18. At the time the incident occurred Mr El Mir was standing at the door of the Container and witnessed the glass sheets falling onto Mr El'Hefny. Details of Systems of Work Prior to the Incident 19. Prior to the incident 7 Star did not have a risk assessment process in place for the unloading of glass sheets from containers. 20. Prior to the incident, 7 Star had not undertaken a formal risk assessment to identify the risks associated with unloading glass sheets from the timber crates prior to unloading, such as the risk of sheets of glass falling on the persons. 21. 7 Star did not undertake an adequate risk assessment to identify whether the contents of the Container i.e. the sheets of glass, case or end caps had unexpectedly moved during the transportation; 22.`7 Star did not have a documented Safe Working Procedure for the unloading of shipping containers such as storing of Containers on level ground, ensuring restraint of glass using straps or ropes prior to removing them from the Container, removal of whole cases of glass and end caps from the container before removal of individual sheets of glass. 23. 7 Star did not undertake a Job Safety Analysis for unloading glass from shipping containers using mechanical aids such as forklift, mobile crane and/or a glass grab. 24. 7 Star did not provide any formal training, instructions or information to Mr El'Hefny on how to unload shipping containers prior to the incident on 28 September 2007. 7 Star did not have documented training records in place prior to 28 September 2007. 25. Mr El'Hefny was not under the direct supervision of any person at the time of the incident. Details of Systems of Work after the Incident 26. After the incident 7 Star conducted risk assessments on unloading shipping containers. The risk assessment was conducted by Mr Taher and Mr Mark Peagam, OHS Manager of Pilkington (Australia) Pty Ltd on 12 October 2007. The risk assessment identified that unexpected movement of glass, case or end cap can crush a person. The risk assessment listed the action proposed to control the risk as: · Store Container on level ground · Restrain glass using strap or rope · Keep out of fall zone of glass or end cap · Remove whole cases and end caps from contain before removing glass · Use mechanical aids to remove glass (eg crane) · Do not walk between cases or end caps unless they are restrained. 27. Following the issuing of Inspector's Notices, 7 Star implemented various control measures to address occupational health and safety issues. These measures include: a) Implementing a system of work and developing a documented Safe Working Procedure for the unloading of shipping containers and a Job Safety Analysis worksheet for unloading loose glass from open top shipping containers using a mobile crane and a Bremner glass grab. b) Providing training to employees on lifting, moving and storing glass and unloading shipping containers. Mr Peagam and Mr Taher provided the training. Prior Convictions 28. The defendant has no prior convictions under Occupational Health and Safety legislation.

Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR104, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such element ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999.

Consideration 11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): 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" ... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 12 The deceased (Mr El'Hefny) commenced employment with the defendant two weeks before the incident. His duties included moving and unloading glass from shipping containers which glass was contained in timber packaging. On the day of the incident, Mr El'Hefny was in the process of moving glass sheets from a shipping container when a timber crate containing the glass sheets and weighing approximately 1.43 tonnes fell and trapped him against another timber crate. Mr El'Hefny sustained fatal injuries. Mr El'Hefny had not received any formal training, instruction or supervision on how to unload the glass stored in the shipping container. There was no risk assessment to identify the risks associated with unloading glass sheets from timber crates by hand prior to unloading them. There was no documented Safe Working Procedure for the unloading of containers. The defendant failed to undertake a Job Safety Analysis for use of mechanical aids such as a forklift, mobile crane and/or glass grab. 13 Mr Taher, the controlling mind of the corporation opined in evidence that he always, on behalf of the company, engaged "Georges' Cranes" to assist in the removal of glass from shipping containers prior to the incident. In cross examination, however, he accepted that some glass sheeting had been removed by him from the same shipping container about a week before the incident by use of a forklift borrowed from the neighbour at the place where the container had been delivered. I am satisfied no proper equipment was available for the performance of the task on the relevant date. There is no evidence that even a forklift was available. 14 The defendant company raises two issues for consideration by the court in its assessment of the objective seriousness of the offence. The first issue raised is that of proximity. The Statement of Facts reveals the incident did not occur on the premises of 7 Star Glass Pty Ltd, but occurred on the premises of SF Manufacturing and Trading Pty Ltd. The defendant company, evidence revealed, had not placed, delivered or overseen delivery of the container. The defendant company therefore, it was submitted, had no control over the premises on which the container was placed. 15 This submission is rejected. The employee was ordered by Mr Taher to the site for the task of unpacking the crate of glass without any instruction as to safety on how to perform safely such a dangerous task as is the task of unpacking glass sheets from a container. 16 The second issue the defendant company raises is the issue of "remoteness". The defendant company submits that, but for the chain of actions performed solely by Mr El'Hefney and a friend, Mr El'Hefney would not have suffered the injuries he did or in fact any injuries at all. It is submitted that the Court should consider the exposure of risk did not lie in Mr El'Hefney attending the site of the container but in a chain of events, caused solely by himself, in accessing the container and entering the container then (not directly exposing himself to the risk in itself) but importantly, removing the wooden supports by hand and then removing the glass from within the wooden supports by hand. These latter actions, performed by Mr El'Hefney were events which exposed him directly to a risk. The risk was not a real risk until Mr El'Hefney cut the wooden supports and commenced the removal of the glass thus undertaking the work which was always performed by a crane. It was submitted the risk was therefore "remote" and the exposure to the risk only became real due to the chain of actions performed by Mr El'Hefney, which chain of actions exposed him to the identified risk. The above submissions were also relied upon in the context of the Court's consideration of the foreseeability of the breach. 17 The prosecution is brought under s 8(1) of the Act which places upon an employer an obligation to "ensure" safe working. There was no proper instruction for the performance of unloading glass sheets from a container given to this employee. The employer failed to properly supervise and provided no training on the safe system for lifting and moving glass. The employer had an obligation to this keen employee as well as to any other perhaps careless, inattentive, unreasonable or hasty employee. Mr El'Hefney was a keen employee. He knew the container had to be unloaded that day as the glass was to be collected the following day. The risk of injury by sheets of glass falling when the glass was unloaded from the wooden crates was a foreseeable risk in any circumstance. The risk of that task being performed by a keen employee who had not been instructed on any safe system of work was a foreseeable risk once an employee without instructions was sent to the site for the purpose of unloading the crate. It cannot be accepted that even if Mr Taher did say "wait for me" or words to that effect, and I am not persuaded he did say those words, that his instruction was sufficient to ensure safe working. I accept there was a foreseeable element to the offence which makes it an even more serious offence. I reject the proposition the risk was remote. 18 The words of the Full Bench in Riley v Grader Hire Pty Ltd [2001] NSWIRComm 31 at [15] are relevant. . . . Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. . . . 19 I also reject the proposition the employee caused a chain of events leading to the risk. It was the pleaded failures of the defendant corporation that led to the risk to safety. 20 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented but the mind of the defendant did not easily adapt to the corporation's obligations under the Act. Such activity after the incident is indicative of the fact a system of work for this type of operation was readily available and practical. 21 The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant (Lawrence Diecasting Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any employee being required to manually handle sheets of glass where there was no system of work in place and no proper equipment provided. Although the gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of the penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety: (Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]). Greater culpability attaches to the neglect of a risk of safety, especially where the result has such a serious consequence (Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8). 22 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 23 The defendant contends the company ceased trading in about February 2010 so no element of specific deterrence is relevant to penalty. However, when Mr Taher was cross examined on this assertion it became clear the company is still trading. Further after the incident evidence revealed Mr Taher immediately set up a new company with a similar but not the same name adding "Mirrors" to the title. Mr Taher, the sole director and secretary of the defendant, is now the sole director and secretary of 7 Star Glass & Mirrors Pty Ltd which was incorporated 11 days after the Application for Order was filed. This company also continues to trade but in different aspects of the glass industry. Mr Taher contends now when he receives an order for "glass" he facilitates that order through the old company but now he organises a direct delivery of such an order and does not take responsibility for its unloading. That evidence establishes the company is still active. 24 Therefore, there needs to be a component for specific deterrence in penalty to reinforce to the defendant the responsibility to maintain constant vigilance and take all practicable precautions to ensure workplace safety. The defendant corporation is still registered and there is no suggestion that it will not continue to trade in the future. 25 In fixing an appropriate penalty in the present case there is also a need for a significant component for general deterrence to reiterate a strong message to other employers of the risks to health and safety of employees when storing and handling glass sheets in the workplace. This is the second similar incident which has come before this Court. Cheap imports of the material are now brought in from China. This availability coincides with a great demand for glass sheeting in building projects both domestic and commercial. Small corporations have been established to import such goods without any attention to occupational health and safety standards. The glass industry in general must be rigorous in the application of safe working systems especially where there are dangerous materials being handled. 26 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]: 56 ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c)

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 27 The defendant is entitled to have taken into account its plea of guilty, as mitigating penalty. It is appropriate to apply the guideline judgment in R v Thomson and Houlton. The defendant pleaded guilty at the first available opportunity after the Application for Order was amended. The utilitarian value of the defendant's plea is at the higher end of the scale of discount. I allow a 20% discount. 28 Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that "remorse" may be taken into account as a mitigating fact if and only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 29 In Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201, Boland J, President said at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). 30 Mr Taher has expressed his remorse stating he feels "incredibly hurt and sorry for the family of Mr El'Hefny" and has tried to demonstrate that remorse after the incident by sending the deceased's family money. Mr Taher states he has tried to assist Mr El'Hefny's family in Egypt by sending them between $4,000- $5,000 as well as giving Mr El'Hefny's brother an amount of $2,000. Mr Taher suggests he has kept in contact with Mr El'Hefny's family and proposes to visit them in Egypt this Christmas. 31 However, following the death of Mr El'Hefny, the defendant corporation, through Mr Taher, its controlling mind, thought that once the corporation was not trading it did not need to set up policies and establish safe working procedures. That attitude has now changed. The defendant corporation, with some persuasion, has now implemented a number of measures including a complete risk assessment in relation to the unloading of shipping containers; measures in place to control identified risks; the documentation of safe working procedures for the unloading of shipping containers; completion of a job safety analysis for unloading loose glass. The same procedures are relevant to the mirror importing business. 32 In addition, the company provides training to employees on glass movement and storage and unloading shipping containers. These post incident measures are finally in place. It has been difficult for Mr Taher, as the mind of the corporation, to adopt the rigor required in NSW as an employer to ensure safe working. He had an attitude that the incident was the result of the work of a foolish employee. Rather this was an employee required to perform a task with no system in place to ensure his safety. 33 Further, the Court has not accepted Mr Taher as a reliable or credible witness. He gave inconsistent evidence on the activities of his corporations and the solvency of the defendant corporation. The company records handed to the Court were not acceptable. For example, Mr Taher could not explain the loans listed in the company returns despite them being recorded as a considerable amount (one was $800,000). Trading figures and profits declared were questionable. The records were in draft and not certified. I am not satisfied. I am not persuaded that the corporation is not trading and I am not persuaded, as was claimed, it has no income or assets. 34 The maximum penalty is $550,000 for this offence. 35 Notwithstanding the defendant has now put in place safe working measures at its worksite there is a need to ensure Mr Taher, the controlling mind of this corporation, adopts these safe working procedures in the conduct of this dangerous enterprise. The plea of guilty is but an indication of an acceptance of his obligation to ensure safe working. Further, when brought to answer for this breach of the Act, the defendant first sought to mitigate the seriousness of the offence, relying upon acts of the deceased then sought to allege his company had no continuing role in the dangerous enterprise; he then revealed he had registered another company to perform similar, if not the same task after which he relied upon very questionable financial documentation to establish that the corporation had not only limited assets, but to support a claim it was not trading. None of these propositions were established to the satisfaction of the Court. Mr Taher proudly informed the Court he had been a businessman for 29 years without incident. That industrial history is to his credit. However, this was a most serious incident where an employee was asked to perform a dangerous task without any supervisory training, work method or appropriate equipment. 36 For all the above reasons, I make the following orders: 1. In Matter No IRC 1433 of 2009, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $190,000 with a moiety to WorkCover Authority of New South Wales.

The defendant to pay the costs of the Prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (19)