Preliminary matters
1 Romeo Elias Ibrahim pleaded guilty to an offence under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (2000 Act). Mr Ibrahim, at the time of the offence, was a director of REI Construction Pty Limited which the Court was informed has been placed under external administration. Yassir Abdalla Hussein pleaded guilty to an offence under s 8(1) by virtue of s 26(1) of the 2000 Act. O & H Construction Pty Limited, of which Mr Hussein was a director at the time of his offence, also pleaded guilty to an offence under s 8(1) of the 2000 Act.
2 The offences concern an incident which occurred at a construction site in Kiama on 18 November 2006 when Mohammed El Gendy, a 24 year old labourer, was crushed by a concrete block wall after it collapsed. Mr El Gendy suffered very serious injuries as a result of the incident which included multiple fractures to the base of his skull.
3 The three sets of sentence proceedings were heard together, although two separate sets of agreed facts were tendered, one against Mr Ibrahim and the other against Mr Hussein and his company, O & H Construction. The two sets of agreed facts are substantially similar and any differences which arise (which are relatively minor) will be accommodated by specific reference to them as they pertain to each defendant.
Agreed facts
4 The project under construction at the site was a multi-storey hotel and convention centre, known as "Kiama Blue", a three-stage development located in Kiama. The project was under the control of Colmerc Projects Pty Limited (Colmerc) as the principal contractor. The first stage of the project entailed the construction of residential units, a restaurant, brasserie, and a shop, which had been completed in early 2006. Stage Two involved the construction of a motel complex (serviced apartments) built over three basement levels and four hotel levels. Stage Three involved the renovation and conversion of an existing old heritage-listed school building into a convention and function centre. Stages Two and Three were run concurrently, with the incident occurring during Stage Two. The value of the construction work for Stage Two was about 12 million dollars.
5 In Stage Two of the project, the building was being constructed in two halves because of the post-tensioning of the concrete floors. A concrete pour step was poured between the two floor slabs after the two slabs were tensioned. The strip divided the building into two halves designated as west and east. The ground floor hotel level on the west side, designated "H1 West" was the site of the incident.
6 As is common on large construction sites a number of corporate entities and individual businesses were involved in the project. These entities and individuals are listed below:
a. Colmerc Projects Pty Ltd , Principal contractor;
b. Multi-Formwork & Hire Pty Ltd , concrete package sub-contractor;
c. REI Construction Pty Ltd , sub-contractor to Multi-Formwork & Hire;
d. A1 Formwork (Aust) Pty Ltd , sub-contractor to REI Constructions;
e. B-Stress , post-tensioning concrete contractor to REI Constructions;
f. DJJ Construction Pty Ltd , concrete placement and steel fixing;
g. Kajima Construction Pty Ltd , supervision contractor;
h. Talon Lock Enterprises Pty Ltd , supervision contractor;
i. O & H Construction Pty Ltd , labour hire;
j. JML Bricklaying , Bricklaying contractor.
7 Multi-Formwork & Hire Pty Ltd (Multi-Formwork) entered into a written contract with Colmerc to undertake the formwork, steel-fixing and concreting. Mr Ibrahim had, at an earlier stage, been the sole director of Multi-Formwork and at the time of the incident he retained effective management and control of that company. Mr Ibrahim signed the contract with Colmerc on behalf of Multi-Formwork. Under the Contract, Item 23 of Clause 29, headed "Scope of Work Inclusions", provided (the reference to "sub-contractor" being a reference to Multi-Formwork):
The subcontractor will provide cranage, cranage labour and traffic management for their own use. Reinforcing steel will be delivered and unloaded to an area adjacent to the street and the subcontractor shall move it, by crane or otherwise, to appropriate work areas.
8 Notwithstanding this requirement, the facts reveal that no cranage was made available. An alternative method of work was adopted which involved pieces of equipment being moved by hand and stored manually. The significance of these matters, which will be explored in more detail shortly, was that the procedure adopted for manually moving the equipment was said to give rise to the risk to safety of workers at the site, in particular, Mr El Gendy. The evidence does not reveal who, if anyone, gave the instruction on 18 November 2006 to manually move the equipment.
9 Multi-Formwork immediately sub-contracted the whole contract package to Mr Ibrahim's other company operating at the site, REI Construction Pty Ltd (REI). The prosecution's case on sentence was that the contract originally made between Colmerc and Multi-Formwork required REI, as the relevant sub-contractor, to assume responsibility for cranage at the site.
10 REI in turn sub-contracted out the concrete placement, stressing and steel fixing work to other sub-contractors. It carried out the formwork erection and stripping work with the assistance of two other sub-contractors, A1 Formwork (Aust) Pty Limited (A1 Formwork) and O & H Construction. About three weeks before the incident, A1 Formwork left the site taking all its employees to another major project in Sydney. REI, as a result, required additional workers to assist it to do the formwork and falsework. Mr Ibrahim, on behalf of REI, entered into a verbal agreement with Mr Hussein as director of O & H Construction to supply labour to the site in order to meet Colmerc's requirements. O & H Construction commenced to supply labour to the site from about the middle to late October 2006, a period which overlapped with A1 Formwork employees still working at the site.
11 REI appointed a sub-contractor, Kajima Construction Pty Ltd (Kajima) to supervise the work it was doing at the site. Kajima's nominated supervisor was Anwar Abdulmajeed, who was a director of Kajima. According to the agreed facts tendered against Mr Ibrahim, Mr Abdulmajeed was an overseas qualified engineer with over 10 years "industry experience" in Australia.
12 Darren John Mercer was the sole director of Colmerc and was engaged by it on the project as a site manager. His responsibilities included the day to day management of Colmerc's operations.
13 Talon Lock Enterprises Pty Limited (Talon Lock) had a written agreement with Colmerc to supply Talon Lock's director, Richard Warren Smith, as site foreman on the project. As site foreman, Mr Smith was responsible for day to day supervision of the work being done on the project by the sub-contractors, including the planning and co-ordination of that work.
14 Mr El Gendy was employed by O & H Construction. About five to ten employees were supplied to REI by O & H Construction to work on the project. Some of those employees were overseas students, recently arrived in Australia on student visas, who had no previous construction experience.
15 Mr El Gendy did not speak English. He was an inexperienced labourer who arrived in Australia from Egypt about two months before the incident. He did not have a working visa and commenced to work on the project six days before the incident. O & H Construction did not assess his experience before, or at any stage after, he commenced working on the project.
16 Atef Nasser, another employee of O & H Construction was also an Egyptian citizen who had arrived in Australia on a student visa, about six weeks before the incident. He had no previous construction work experience when he commenced work at the site on the project about one or two weeks before the incident.
17 Mohamed Elzaher, also an employee of O & H Construction and also from Egypt, had arrived in Australia about one month before the incident. According to the agreed facts tendered against Mr Hussein and O & H Construction, he had no experience in construction work prior to commencing work on the project. Both sets of agreed facts record that he commenced work at the site about two weeks before the incident.
18 The agreed facts against Mr Hussein and O & H Construction record that other employees supplied by O & H Construction to work on the project were either from Egypt or Sudan. These employees were Shokry Ibrahim and Tamer Moustafa, both of whom had been in Australia for a relatively short period and neither of whom had any relevant work experience. Arkangelo Kon and Shitag Akot had both been in Australia for two to three years but had only limited work experience.
19 At the date of the incident, Mr Hussein had only eight months experience as a construction worker.
20 At the site, either Mr Smith or Mr Mercer informed Mr Abdulmajeed on a daily basis of the numbers of labourers required. Once A1 Formwork left the site (two to three weeks before the incident) more workers were required to do the formwork erecting and stripping. Mr Abdulmajeed, in turn, informed Mr Ibrahim each day of the number of workers required. Mr Ibrahim would relay the information to Mr Hussein or Osman Abdalla, an employee of O & H Construction. If more workers than usual were required on a particular day, Hassan Saad, a friend of Mr Hussein, would pick up additional employees from Sydney and drive them to the site in Kiama.
21 At the site, Mr Abdulmajeed gave instructions to either Mr Abdalla or Mr Hussein on the work to be done. If both those men were absent from the site, Mr Abdulmajeed would give instructions directly to the O & H Construction employees. The employees of O & H Construction, according to the agreed facts, "were not entirely sure" who their supervisor was as they took instructions from all three men.
22 The work the O & H Construction employees were instructed to do was clean and stack the formwork.
Objective factors
23 The system of work under which the O & H Construction employees operated on the days leading up to the incident was deficient in a number of respects.
24 REI used a conventional formwork system at the site to construct the suspended floors of the buildings, that is, steel falsework frames, jacks, U-head jacks, upon which timber falsework is placed (timber bearers, joists and plywood) to form a deck. This system requires the formworkers to erect the steel falsework across an open area, erect the timber formwork on top, place the steel reinforcement and stressing ducts, pour the concrete, stress the deck, then wait an appropriate period for the new concrete and steel floor to set before lowering the adjustable falsework so that the timber formwork can be stripped out and the metal formwork can be removed from under the suspended floor. To construct the next section of work, the formwork and falsework material is then moved to the next area where a floor is to be constructed (usually the next level).
25 The usual building practice is for the metal formwork frames, when not in use, to be stored horizontally, with the frames tied together and moved either by forklift or by pallet jack to a point with external access (such as a landing platform which juts out from the building) where the frames can be lifted by crane to the floor above for re-assembly in order to construct the next concrete floor.
26 The usual practice for storing and moving the formwork frames was not followed at the site. Colmerc did not supply a fixed tower crane for REI to use. According to the agreed facts tendered against Mr Hussein and O & H Construction, Multi-Formwork, under the contract with Colmerc, was to supply its own cranage to lift the formwork to a higher level. According to both sets of agreed facts, there was a problem with the use of a mobile crane in that after construction of H2 floor, a crane could not reach the back half of the floor area and the cranes could not slew sufficiently due to a large fig tree at the front of the site.
27 According to the agreed facts, prior to the incident, a tower crane had been requested by Mr Abdulmajeed and Mr Ibrahim, but there was no crane on the day of the incident. If a crane had been utilised then the O & H Construction employees would not have been required to move the materials by hand on the day of the incident.
28 In addition, no loading platforms had been installed on the floors of the building to allow materials to be moved out from under the finished concrete floors so that a crane could move the formwork to a higher level. REI had requested a loading deck on the H2 East side three days before the incident in order to remove formwork from under the concrete floors. Mr Ibrahim, in his affidavit, stated that Mr Mercer informed him that a loading platform would arrive, "next week". The loading platforms, had they been installed, would have allowed the formwork equipment to be removed earlier and lifted between the floors.
29 In the absence of loading platforms that could be accessed by a crane (or a materials hoist which moves smaller materials between floors), all the formwork and falsework was moved between floors by hand. This work was performed by REI and O & H Construction employees.
30 There was, as the agreed facts record, limited storage space for the formwork. This meant that as stripping of the formwork commenced there was insufficient room to store it. As a result, a lot of the formwork was left stacked on the floors. Greater storage space would have made it less likely that the falsework would have been stored against the newly constructed wall which fell on Mr El Gendy.
31 It is standard building practice that walls are only constructed after the floor has been completed, all the formwork has been removed and the area cleared. This provides clear access for the bricklayers and prevents the risk of workers doing one job (for example, stripping and moving formwork) in the vicinity of, or in proximity to, workers undertaking some other task (for example, constructing walls).
32 Standard building practice, however, was not followed at the site. Prior to the incident, the brickwork was being undertaken before the formwork had been stripped and stored. Sub-contractors from different trades were therefore working alongside each other.
33 The wall, the subject of the incident, was about 1.6 metres wide and 2.7 metres high. It was made of two skins (columns) of hollow bricks with a cavity between them. The skins were joined by brick ties (loops of galvanised steel) every three or four rows (known as courses) with mortar laid on top. Each hollow block with the mortar attached weighed about 2.5 kilogrammes. The wall was constructed of approximately 180 blocks giving it a total weight of about 450 kilogrammes.
34 Australian Standard AS3700-2001 titled "Masonry Structures", required at 11.9:
Masonry under construction shall be braced or otherwise stabilised or necessary to resist wind and other lateral forces, in such a manner that the structural integrity of the member or structure is not impaired.
35 At the time of the incident, the wall was freestanding and was not braced or secured by any means. Nor was it connected to the ceiling. It had been laid the day before the incident and was still "green" the following day, that is, the mortar was still soft and had not reached its full strength. The wall was therefore inherently unstable at the time of the accident. There was no signage warning that the wall was not to be touched, and no barriers erected to prevent the workers being in proximity to it.
36 Mr Smith had instructed Mr Abdulmajeed before the incident date, to strip the formwork from H1 East and move it out of that area so that it would be clear for the brickwork to commence. Mr Smith had earlier instructed the bricklayer, Jeff Lee, to build the wall involved in the incident in H1 West which Mr Lee did on the day before the incident (immediately adjacent to the area where the formworkers were stripping the formwork). As a consequence of Mr Smith's directions, therefore, REI employees were stripping formwork and falsework from the underside of the H2 East floor above them on the day of the incident. At the same time, five Sudanese workers employed by O & H Construction were denailing, cleaning and stacking the formwork and falsework frames that were being stripped from the area. Four of the five Sudanese workers then carried the formwork and falsework frames through to H1 West and placed the materials on the cleared concrete slab in that area.
37 Mr Smith saw the workers stacking the formwork in the cleared area in H1 West. He instructed them to move the items off the floor because he had arranged bricklayers to work in that area in two days time (20 November 2006) and needed the area cleared. The workers (who were employees of both REI and O & H Construction), in attempting to comply with the instruction, commenced stacking the steel formwork frames vertically against the surrounding walls in H1 West. They did this because it was the only available space. One of the walls chosen to lean the frames against was the newly constructed "green" wall. About 20 frames were stacked in upright positions, leaning against that wall.
38 At about the same time, Messrs El Gendy, Elzaher and Nasser were carrying the smaller formwork pieces (the formjacks, jacks and some of the formwork) up the scaffold stairs from the ground floor level to a higher level. Mr Abdulmajeed saw them and directed them to form a chain to pass the material up instead of taking the material via the stairway.
39 At the time of the incident (which was about 8.10am), Messrs Elzaher and Nasser were standing on the ground floor of H1 West, adjacent to the incident wall. Mr Nasser was relaying Mr Abdulmajeed's instructions to Mr Elzaher. Mr El Gendy was standing about three metres away from them in front of the incident wall, when it began to move. Mr Elzaher pulled Mr Nasser away from the falling wall and as a result both avoided being struck by the falling blocks. A block struck Mr El Gendy on the side of his head and he fell to the ground with the concrete blocks on top of him, as well as some of the steel formwork frames which had been placed upright against the wall earlier by the workers from REI and O & H Construction.
40 These facts demonstrate that the workers, all of whom were inexperienced, were not given proper instructions as to where to store the items. While Mr Abdulmajeed was giving instructions to Messrs El Gendy, Elzaher and Nasser, they were allowed to stand in the vicinity of the newly constructed "green" wall which had 20 steel formwork frames propped up against it. The work which was taking place at the time of the incident was against standard building practice, in that, brickwork was being laid in the same area and at the same time that the formwork was being stripped and stored.
41 The deficiencies in the procedures employed for the work taking place on the day of the incident placed the workers, in particular, Messrs El Gendy, Elzaher and Nasser, at serious risk to their safety by reason of the inherent instability of the "green" wall, the 20 steel frames propped up against it, and their proximity to the wall. O & H Construction failed to assess the experience of its employees with regard to the moving and transporting of the formwork and falsework between the floors. REI (and its director, Mr Ibrahim) failed to ensure that the newly constructed wall and freestanding wall was cordoned off to prevent non-employees from working near it.
42 Moreover, the workers were not adequately supervised by the defendants. According to the prosecutor, Mr Ibrahim placed material before the Court to the effect that Mr Abdulmajeed did not have supervisory responsibilities in respect of the O & H Construction employees. This material was said to be principally in the form of a letter from Mr Ibrahim to O & H Construction in which Mr Ibrahim wrote:
Also note that your company must supply a supervisor or team leader for the group of workers at all times. Also your supervisor should work together with our foreman on site to discuss and carry on with the work required.
43 The agreed facts record on the issue of supervision:
There was confusion on the site as to who was the supervisor of the O&H's employees. When Mr Ibrahim engaged Mr Hussein to supply labour to the site, he stated that O&H had to provide a supervisor, and Mr Ibrahim was informed that this would be either Mr Hussein himself or Mr Osman Abdalla. Mr Hussein and Mr Abdalla did supervise the O&H employees when they were at the site. Neither he nor Mr Abdalla were at the site however on the day of the Incident nor on the previous three to four days.
Mr Abdulmajeed's initial role was to liaise on behalf of REI between the four sets of contractors and the builder, program the works and chase materials and plans, but due to many problems on the site he had to take on the additional role of supervision of the formworkers and also the leading hand role for the formwork. According to Mr Ibrahim and Mr Abdulmajeed O&H were to provide their own supervisor.
Mr El Gendy, did not know who his supervisor was.
The O&H employees did not know who the builder or person in control of the site was.
On the day of the incident, there was no direct supervision of the O&H workers on the H1 level. Mr Abdulmajeed was on site as the supervisor representing REI and Multi-Formwork. Mr Smith was on level H1 west, approximately 10 metres from the incident. He made sure that O&H workers did not stack formwork on the area he had cleared for the bricklayers on H1 West and had made them move the formwork which they had stacked horizontally on H1 West earlier that morning.
44 Consistent with other agreed facts, Mr Abdulmajeed, shortly before the incident, had instructed Messrs El Gendy, Elzaher and Nasser to "chain" the smaller items of formwork to the next level, instead of carrying the items up the stairway. He was giving instructions on this matter to the three workers while they were standing adjacent to the newly constructed "green" wall. While he was in the process of giving instructions, the wall fell on Mr El Gendy, who had been standing in front of it. Mr Abdulmajeed's conduct at this time clearly involved a supervisory role over the three O & H Construction employees. As the agreed facts suggest, it may have been the initial intention on the part of REI that O & H Construction provide its own supervisor at the site. As events transpired, however, this did not happen on a regular basis. According to the agreed facts, Mr Hussein and Mr Abdalla took instructions from Mr Abdulmajeed and Mr Abdulmajeed would give instructions directly to O & H Construction if Messrs Hussein and Abdalla were absent from the site. Because of this arrangement, the employees of O & H Construction "were not entirely sure as to who their supervisor was as they took instructions from all three men".
45 These matters provide support for a finding (which I make) that REI and its appointed supervisor, Mr Abdulmajeed (nominated by Kajima) had, and exercised, supervisory responsibilities in relation to the employees of O & H Construction. Mr Ibrahim, it should be noted, entered a plea of guilty to a charge that encompassed two particulars which alleged that REI failed to provide sufficient supervision to "non-employees" to ensure that they did not work within the vicinity of the wall, and failed to provide sufficient supervision to "non-employees" to ensure that they did not stack frames against the wall. Given the factual background relied upon in relation to the charge, the reference to "non-employees" can only be a reference to the O & H Construction workers at the site on 18 November 2006.
46 REI prepared some safe work method statements (SWMS) in relation to the project, however, none of those statements dealt with the risk to workers arising from working in the vicinity of "green" walls. Of greater significance perhaps is that none of the SWMS were given to O & H Construction or their workers. According to the agreed facts, Colmerc's sub-contractors were required to sign the site attendance register daily, but the practice was not always followed. On the day of the incident, for example, Mr El Gendy's name is not recorded on the register. The sub-contractors were also required to submit SWMS prior to commencing work at the site. REI submitted a SWMS to Colmerc before the incident, but it was deficient because it failed to adequately deal with the safe method for stripping, stacking and moving formwork around the site or between floors. In particular, it did not specify that falsework was not to be stored vertically against a wall. O & H Construction did not supply a SWMS to Colmerc prior to commencing work.
47 The deficiencies in the procedures utilised by REI and O & H Construction were therefore, serious and gave rise to a serious risk to the safety of the workers employed by O & H Construction. The risk to safety (characterised by the prosecutor as the risk of the "green" wall collapsing with items stacked against it) was also obvious, for reasons earlier set out, and foreseeable given the workers' inexperience in the construction industry, their lack of adequate instruction and supervision, and the bricklaying activities taking place at the same time as the stripping and stacking of the formwork.
48 Straightforward measures were also available to all defendants which could have avoided the risk. One such measure could have consisted of a simple instruction to the workers about the risks associated with working near "green" walls, in particular, not to lean objects against them. Another equally simple measure could have been to install barriers or signage next to the "green" wall. Both of these measures were in fact put in place after the incident.
49 The offences are also serious by reason of the likely or probable consequences which arose from their commission, realised in the collapse of the wall which caused serious injuries to Mr El Gendy. The injuries to Mr El Gendy could have, in the circumstances, been more serious.
50 All of these foregoing objective factors compel the finding that the offences were serious, a matter readily acknowledged by the defendants.
51 There are some matters, however, applicable to the defendants, which mitigate to some extent the objective seriousness of the offences.
52 One matter relied upon by all defendants concerned the responsibility for cranage at the site. O & H Construction and Mr Hussein each contended that they were not responsible for arranging cranage. This is consistent with the evidence tendered during the proceedings. An issue arose between the prosecutor and REI as to whether REI had responsibility with regard to arranging cranage at the site. On behalf of the prosecutor, it was contended that this responsibility was implicit in the sub-contracting of Multi-Formwork's contract to REI. Item 23 contained within Clause 29 of the contract has been already referred to. It obliged "the sub-contractor" (Multi-Formwork) to provide cranage. It was contended on behalf of Mr Ibrahim that there was no evidence to support a finding that REI had an obligation (passed on by Multi-Formwork) to provide a crane, or loading platforms, at the site.
53 The evidence on this issue appears largely confined to a paragraph in the agreed facts. It reads:
As recorded above, Colmerc as principal contractor for the site sub-contracted the concrete package for the project to construct the concrete and steel floors to Multi-Formwork. This concrete package comprised of formwork erection and stripping, reinforcing steel placement (steel fixing), concrete placement, and post stressing of stressing cables in the floor slabs. Multi-Formwork sub-contracted the whole package to REI. REI sub-contracted out the concrete placement, stressing and steel fixing to other subcontractors, and carried out the formwork erection and stripping themselves with the assistance of two sub-contractors as set out in the next paragraph.
54 As I read the passage, Colmerc sub-contracted the construction of the concrete and steel flows to Multi-Formwork. This "concrete package" was in turn sub-contracted by Multi-Formwork to REI. There is no suggestion in the passage that anything other than the actual work involved in construction of the concrete and steel floors was sub-contracted to REI. It does not follow, either expressly or by implication, that Multi-Formwork's responsibility to provide cranage formed part of the "concrete package". I find therefore, that REI was not contractually obliged to provide the cranage. Some support for this finding can also be found in the agreed facts tendered against Mr Ibrahim which records that prior to the incident, Mr Ibrahim (on behalf of REI) and Mr Abdulmajeed asked Colmerc to provide a tower crane which was not supplied. As I earlier observed, had one been supplied, and in use, the O & H Construction employees would have had an alternative means of moving the materials other than by hand on the day of the incident.
55 The agreed facts also record that REI asked Colmerc three days before the incident to supply a loading deck on the H2 East side to allow them to remove the formwork from under the concrete floors. Colmerc apparently did not agree to his request at that time, but if it had, the loading platforms would have allowed the formwork to be removed and lifted between the floors instead of being manually handled by the REI and O & H Construction workers from the floor of H1 East to H1 West where the newly constructed "green" wall was located.
56 The absence of cranage and loading platforms are matters which I find do not reflect adversely upon the conduct of Mr Ibrahim, Mr Hussein or O & H Construction. Rather, their conduct which facilitates the findings that the offences are objectively serious is directed more towards the absence of adequate instruction, supervision and safe procedures or systems which would have enabled the workers to perform the work without being exposed to risks to their safety.
57 With regard to Mr Hussein and O & H Construction, Mr Hussein stated, in an affidavit, that he interviewed Messrs El Gendy, Elzaher, Nasser, Shokry Ibrahim, Kon and Akot (and Tamer Moustafa) prior to employing them and confirmed that they all had green cards. He said he saw the green cards. His evidence was unchallenged (notwithstanding the relatively short period of time most of them had been in Australia, and their inexperience in construction work). I therefore accept this (unchallenged) evidence in support of a finding, which I make, that Mr Hussein and O & H Construction at least had made some enquiries with regard to the employees' qualifications to work at the site.
58 Mr Hussein also said in his affidavit that he discussed "safety" with the employees and reminded them that they were to wear protective clothing and equipment at the site, including a hard hat and steel-toed boots. He also said that the employees had the assistance of an interpreter during a work site induction conducted by Colmerc. The interpreter was Mr Hussein's friend and assistant, Hassan Saad. After the induction, Mr Hussein said he conducted a tour of the site with the employees and pointed out to them what he believed to be "danger zones, no go zones and safety hazards".
59 REI placed reliance on a handwritten letter by Mr Abdulmajeed to Mr Mercer which was composed after the incident on 21 November 2006. In it, Mr Abdulmajeed refers to a number of requests made by REI prior to the incident for rubbish bins for each floor, loading platforms, and the need for storage space for the formwork material. He also refers to stacking bricks between frames under the formwork as an unsafe practice which he claims was discussed with Mr Mercer prior to the incident. These matters were relied upon as constituting evidence that REI had raised some safety concerns with Mr Mercer prior to the incident, but in relation to which Mr Mercer had failed to respond.
60 There was no challenge to this material by the prosecutor.
61 Given that the material relied upon by Mr Ibrahim, Mr Hussein and O & H Construction has not been challenged, I intend to take it into account as mitigating, to some extent, the otherwise objective seriousness of the offences.
62 I note the concessions by the defendants that the offences are objectively serious. I agree, for reasons earlier expressed, based on the evidence which has demonstrated that the existence of multiple trades working at the site at the same time, the limited instructions and supervision, the absence of safe systems, and the inexperience of the workers combined to expose the workers to serious risks to their safety.
63 General deterrence must also be applied. The present set of circumstances reveals a most unsatisfactory approach to matters of safety at a construction site. Construction sites are, or can be, notoriously dangerous places for workers when they are not the beneficiaries of well-organised and promulgated systems, adequate instruction, information, training and supervision. The present matters are a timely illustration of what can go wrong when safety procedures are not properly addressed, devised or implemented. The importance of safety measures again needs to be emphasised to all employers and contractors who engage workers, particularly inexperienced workers, to perform work at a construction site.
64 Specific deterrence must also be applied. Mr Ibrahim continues to work for a company, Formworx Pty Limited, which the Court was informed is engaged in work in the construction industry. Mr Hussein and O & H Construction continue to operate in the construction industry. Mr Hussein, in an affidavit, sought to emphasise some steps he had taken following the incident to ensure the safety of O & H Construction employees in the future. Those steps, although genuinely taken with a view to ensuring safety, do not, in my view, dispense with the need to invoke the principle against both Mr Hussein and O & H Construction. The steps will be dealt with in more detail shortly as they are relevant to post-incident safety measures which operate in mitigation of the penalties to be imposed.
65 None of the defendants have prior convictions. Mr Ibrahim and Mr Hussein therefore, face a maximum penalty of $55,000 and O & H Construction a maximum penalty of $550,000.
Subjective factors
66 The prosecutor accepted that the pleas of guilty entered by the defendants resulted in a significant utilitarian benefit in terms of costs and savings. Mr Hussein and O & H Construction entered pleas of guilty at an early stage and Mr Ibrahim some months later, but well in advance of the sentence proceedings. In these circumstances, I propose to award a discount of 25 per cent for the utilitarian benefit of the pleas of guilty entered by the three defendants.
67 As a separate consideration from the utilitarian values of the pleas, the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. The absence of prior convictions in the case of the three defendants also entitles them to leniency normally extended to an offender who is not adversely recorded.
68 The defendants also co-operated with WorkCover during the course of its investigations into the incident.
69 The defendants also put in place a number of measures following the incident designed to ensure the safety of workers either employed by them or otherwise engaged by them to work at work sites.
70 Mr Hussein, in his affidavit, set out the post-incident measures undertaken by him and by O & H Construction:
After the accident to Mr El Gendy, O&H Construction did not supply any labour hire services for 2 to 3 months.
The subject accident increased my awareness regarding the importance of safety on a construction site. After the accident I did the following to ensure the safety of my employees:
a) Spent more time on conducting more comprehensive "Tool Box Talks" canvassing further issues specifically safe practices when stacking formwork.
b) Visited the work site prior to sending workers to identify hazards and safety risks and notified the workers of these prior to them entering the worksite.
71 Mr Ibrahim, in his affidavit, described the measures taken by him after the incident:
Very shortly after the incident probably that day or the day after, I had a meeting with Anmar where we discussed how we could prevent such an incident from happening again. I instructed Anmar to speak to all of the workers and to make sure that they were told not to work near green walls, nor to stack formwork any other way but horizontally.
Following the incident REI returned to the Kiama Blue site and completed the works it was contracted to undertake.
Prior to REI returning to the site, I had a discussion with Darren of Mercer Constructions and we agreed that a "no go zone" system should be developed and as a result Mercer Constructions erected a number of signs around the Kiama Blue site.
Following the incident I advised Anmar that any worker who comes onto a building site in which I or one of my companies are involved must have a green card and it must be shown to Anmar or myself if I am on the site and further before any labour or worker is hired full details of their training and experience must be obtained.
72 Rimon Ibrahim, Mr Ibrahim's first cousin, who was also working at the site on the day of the incident, recalled in an affidavit that Mr Ibrahim issued the following instruction at a meeting called by him shortly after the incident:
It is important that you pay attention when you are on site, you need to always watch and look out for things. If anything seems to be wrong or you are worried you must tell me or Anmar. Don't step on anything that is dangerous and stay away from walls which have been constructed which are still wet and unfinished. Anmar please speak with anybody not here at the meeting and tell them what I said. This is very important.
73 Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (CSPA) an offender is only entitled to the benefit of a discount for remorse if evidence is provided of an acceptance of responsibility for his or her actions, and an acknowledgement received of any injury, loss or damage caused. In my view, the defendants have satisfied the requirements of the provision. This is apparent by reason of the post-incident safety measures instituted by them to which I have earlier referred. In addition, with regard to Mr Hussein and O & H Construction, Mr Hussein expressed in his affidavit that he, "hold(s) deep remorse and regret for what occurred to Mr El Gendy". Mr Ibrahim did not express, in direct terms, a similar sentiment, but his affidavit records the efforts he made to ensure that Mr El Gendy was comforted and taken care of during his period of hospitalisation. He also said he gave about $5,000 to Mr Hussein to give to Mr El Gendy in order to provide financial assistance.
74 O & H Construction submitted that it had a limited capacity to pay a fine. Financial records were attached to Mr Hussein's affidavit in support of the submission. Mr Hussein produced no financial records and made no submissions on the issue. Mr Ibrahim also submitted that he had a limited capacity to pay a fine.
75 The records annexed to Mr Hussein's affidavit consist of a profit and loss statement, balance sheet, depreciation schedule for two motor vehicles, a director's declaration and a compilation report for the financial year ending 30 June 2009. The records disclose that O & H Construction had a turnover in the order of $1,000,000, but its operating losses for the financial year ending 30 June 2009 were greater than for the previous year. It also has assets which include a small cash reserve. The director's declaration, signed by Mr Hussein, acknowledged that, "in the director's opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable".
76 These matters, in my view, reveal that O & H Construction has the capacity to pay a fine. It was expressly accepted by O & H Construction that the Court, when assessing its capacity to pay, would take all relevant matters into account and not impose a penalty that was inconsistent with the seriousness of the offence. In this regard, O & H Construction brought to the Court's attention, for its assistance, the judgment in Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Pty Limited and Another [2009] NSWIRComm 206 which applied (at [39]) the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209-210. In that passage, his Honour said:
Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty.
[...]
When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence.
77 The approach of Wright J was endorsed in WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187 at [113] where a Full Bench held that the sentencing judge had fallen into error for failing to give sufficient weight, when considering the defendant's financial circumstances, "to the objective seriousness of the offence, which was itself discounted too greatly by his Honour".
78 In the present circumstances, as I have found, the financial records produced by O & H Construction show that it is in a position to pay a fine, but as the foregoing authorities demonstrate, general deterrence (and the overall objective seriousness of the offence) remains an important consideration as to whether or not the fine imposed should be more than nominal where there is otherwise shown a limited capacity to pay a fine: see also Inspector McKay v Homealloy Bodyworks Pty Limited [ACN 094 793 683] & Another [2010] NSWIRComm 103 at [34].
79 Mr Ibrahim is presently an undischarged bankrupt. It was accepted by the parties that any fine imposed upon Mr Ibrahim would not be a provable debt in the bankruptcy. Mr Ibrahim is, under the prevailing law, liable for any fine imposed for an offence committed against the 2000 Act: see Inspector Dall v Waterside Constructions at [39]. The prosecutor appeared to concede that Mr Ibrahim had a limited capacity to pay a fine. Mr Ibrahim did not produce any financial records in support of his submission. The only material on the issue is contained in the unchallenged account provided by him in his affidavit.
80 In the affidavit, Mr Ibrahim said that he owed debts in the sum of $300,000, he is currently employed by Formworx on a gross weekly salary of about $1,200, and pays a weekly rent of $440. He owns no real property and has three children, all of school age, and a dependent wife. His children attend a private school for which he pays annual fees of $4,000. He is not an Australian citizen or a permanent resident and therefore incurs yearly medical expenses in the order of $1,500 to $3,000 per child.
81 None of these matters were supported by any documentation. Without such documentation, the Court cannot properly assess Mr Ibrahim's financial position as it may impact on his capacity to pay a fine. The information provided moreover, was lacking in detail. There was no breakdown, for example, of what debts make up the figure of $300,000. The material, such as it is, does suggest some capacity to pay. As the Court sought to emphasise in the O & H Construction proceedings, general deterrence is an important consideration when assessing an offender's capacity to pay a fine so that even if financial records, which are otherwise adequate, suggest that an offender has limited means, this may not justify imposing a fine which does not properly reflect the objective seriousness of the offence.
82 I find therefore, that O & H Construction has the capacity to pay any fine imposed. In Mr Ibrahim's case, the paucity of material provided precludes the Court from undertaking an adequate assessment of his capacity to pay and, in any event, the imposition of a fine must properly reflect the seriousness of his offence.
Respective roles
83 The prosecutor submitted that the culpability of all three defendants arising from the circumstances of the offences was "essentially equal". O & H Construction, it was said, was the employer of the injured worker and had obligations to instruct and supervise its staff, but its level of control at the site was low. Mr Ibrahim, as the director of REI, had particular responsibility to ensure that the contract labourers engaged by REI and hired out to work at the site were adequately supervised and instructed and were the recipients of an appropriate safe work method which was properly communicated.
84 On behalf of Mr Hussein and O & H Construction, it was contended that Mr Ibrahim had a greater supervisory responsibility for O & H Construction employees and more control over the work undertaken. It was also contended that Mr Hussein's culpability should be no greater than the culpability of the corporate defendant.
85 Mr Ibrahim sought to compare his role in the circumstances of the offence with that of Colmerc and Mr Smith, contending that they were more culpable.
86 O & H Construction, at the time of the offence, hired out contract labour to REI. The workers were inexperienced and some (according to the prosecutor) could not speak or understand English. In such circumstances, O & H Construction had an obligation to ensure their workers were properly supervised and given adequate instructions which they could understand. The evidence disclosed that this did not occur. Mr Hussein and Mr Abdalla were not at the site on the day of the incident. The workers did not know who was supervising them. O & H Construction did not submit a SWMS to Colmerc. These are serious matters which serve to highlight the objective seriousness of the offences against both Mr Hussein and O & H Construction.
87 REI and Mr Ibrahim, as director of REI, also had supervisory responsibility for the O & H Construction employees contracted to REI to work at the site. As events unfolded on the day of the incident, Mr Ibrahim did not discharge his statutory obligations to ensure the safety of Messrs El Gendy, Elzaher and Nasser. Mr Abdulmajeed purported on behalf of REI to supervise and instruct the three workers in patently unsafe circumstances. These circumstances have been referred to earlier in detail and need no repetition. Mr Ibrahim and Mr Abdulmajeed both attempted, they say, (unsuccessfully) to raise safety issues with Colmerc. As with O & H Construction and Mr Hussein, however, the primary failures of Mr Ibrahim, in my view, lie with inadequate supervision, instruction and safe work practices in circumstances where multiple trades were working together and where inexperienced labourers were manually moving formwork with no clear instructions where to place the items and no storage space having been properly considered and made available.
88 It is difficult, given these matters, to form any view other than one which is consistent with the prosecutor's contention, namely, that the respective culpabilities of each of the three defendants is equal.
89 As for the other entities and persons present at the site also charged in relation to the incident, their respective roles in the offences with which they have been charged fall for assessment at a later stage, when, and if, the Court has before it all the available material.
Penalty
90 In determining penalties against the defendants, I have taken into account the objective seriousness of the offences, the maximum penalties, factors in mitigation, the absence of prior convictions and respective culpabilities. All matters have been considered by reference to the CSPA, in particular, s 21A.
Orders