Consideration
19In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):
...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...
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....
20The corporate defendant was involved in the delivery of spa baths. From 17 October 2009, the defendant corporation engaged Noah Ammana as a "delivery offsider" to assist in carrying out the delivery of spa baths. On 19 October 2009, Mr Ammana was working with Mr Gerges who was the Director of the corporate defendant.
21Mr Gerges and Mr Ammana drove to Spa World Seven Hills and loaded a Grand Bahama spa weighing approximately 355 kilograms onto the defendant's utility vehicle for delivery to a property in Cheltenham.
22Upon arriving at the property, Mr Gerges reversed the utility vehicle down the driveway to a carport. Mr Gerges and Mr Ammana then slid the spa across the tray of the utility vehicle until it tilted and dropped on to the ground. Evidence persuades that the spa had electrical and other components in one end of it, which end was more weighty than the upright end of the spa. Therefore, it was the weighty end of the spa that was placed on the ground.
23Mr Ammana and Mr Gerges then lifted the spa into a nearly upright position so that the spa was touching the timber roof frame of the carport. Mr Gerges then pushed the spa further upright. One side of the spa base was in contact with the rear of the utility vehicle. Mr Gerges then directed Mr Ammana to go to the side of the vehicle with which the base of the spa was not in contact and to hold the spa in place while he, Mr Gerges, moved the utility vehicle to make more room to manoeuvre the spa.
24Mr Ammana then stood between the spa and the utility vehicle to hold the spa at a point halfway between the corner of the base side and the centre of the spa. It is alleged, and it is agreed, Mr Gerges inquired whether Mr Ammana was "right to hold the spa" to which Mr Ammana said "yes".
25The difficulty was that the spa, as it is alleged, could not be held fully upright because it would have touched the roof battens on the carport. Mr Gerges was therefore required to move the utility vehicle. Mr Ammana took two steps backwards up the driveway away from the spa but fell into the driveway gap.
26The spa then fell upon Mr Ammana striking him across the pelvis. As a result of the incident, Mr Ammana suffered three fractures to his pelvis, major trauma to soft tissue ligaments and tendons, nerve damage to his lower back and major trauma to the ligaments of his left leg.
27Mr Ammana received medical treatment following the incident.
28The first charge against the corporate defendant under s 8(2) of the Act is directed to failure of the corporate defendant to provide a safe system of work in that it did not provide a mechanical aid for the lifting of the spa from the back of the utility; failed to support the spa bath by other means other than by being held by a person; failed to ensure that sufficient personnel were available, failed to ensure the weight of the spa was known to the assistant and failed to request and utilise further assistance in these circumstances. It is also alleged that the corporate defendant failed to undertake any or adequate risk assessment of the task on the particular date; failed to provide adequate information and instructions to Mr Ammana and failed to provide supervision. I will deal with the latter particular shortly.
29The corporate defendant admits the charge under s 8(2) and enters a plea of guilty. On the evidence most particulars of the charge are established. However, the particular related to supervision, required the defendant not to undertake the lifting of the spa bath without supervision and that a supervisor should direct persons to support the spa bath by means that ensured there were additional personnel to carry the weight of the spa bath. Mr Gerges was on site. I do not accept there was failure to properly supervise. The particulars repeat the failures in the unsafe system. Mr Gerges had to have a safe system in place. He was there to supervise and was supervising an unsafe system. This particular did not, the way it is fashioned, make any contribution to the risk.
30However, I do accept the other failures particularised as to the unsafe system of work have been established on the evidence. Therefore, there was an unsafe system of work in place and the defendant is guilty of a breach of s 8(2) of the Act.
31A foreseeable element to an offence makes it more serious. Mr Coyne, solicitor, representing the defendants, contended that while it was foreseeable in the circumstances that the offence could occur, the Court would, however, consider this was an unusual act of circumstance. Mr Gerges claims he has been able to perform the task safely over the four years since he had acquired the business and, since the incident in October 2009, has continued to perform the task without problems. He opined that it was the obstruction provided by the carport's limited height which was an aggravating element to this offence. However, a proper risk assessment of the task would have identified that difficulty. The Court determines there will be a small element of foreseeability in penalty for the unsafe system.
32There is a need to consider the elements of deterrence both specific and general in the consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, in a consideration of breaches under the Occupational Health and Safety Act 1983, it was held by Hungerford J (at 388):
I ... would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows:
The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.
33In Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 the Full Bench said at [74]):
[The] Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that 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 Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare ...
34In dealing with the issue of specific deterrence, the Court in Capral noted, at [76]:
... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ...
and further:
The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence.
and at [77]:
In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.
35In consideration of penalty, there must be an element of specific deterrence. While Mr Gerges had a system of work in place it was not adapted to the particular circumstances. Systems of work must be living documents and the system must be adaptable to the circumstance of the specific task. While Mr Gerges has refined the system now in place it is the Court's view that that system may need further refinement. There will be an element of specific deterrence in penalty.
36As to general deterrence, once more an industry must be reminded of the need to risk assess each task required in the performance of their business. This was a small business. The task of delivering a spa to a site was always a duty performed by the business. Each site as a matter of fact will have different problems. In such a circumstance each site must be risk assessed and adjustments made to the system of work which gives recognition to the possible risks identified in a risk assessment on the particular site. There will be an element of general deterrence in penalty.
37In the development of awareness of occupational health and safety standards on worksites, what the incident exposed is that there is now much attention given by employers to the relevant principles in preparation of documentation for safe working procedures but there must also be real attention given to on site work methods following risk assessment of particular tasks.
38In these circumstances the words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 are most apposite (at 5):
The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant...
39The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are relevant. The incident demonstrates the gravity of the risk to persons who are performing tasks that are not risk assessed.
40The risk in the circumstance is reflected as a serious breach of the Act.
41In Matter No IRC 1614 of 2011, the corporate defendant is also charged under s 86(1) in that it failed to notify the incident to WorkCover.
42I am satisfied that on 19 October 2009 the defendant corporation was in charge of the operation being conducted at the premises. I am satisfied Mr Noah Ammana was injured in the course of the delivery, when the spa bath fell on him.
43I am therefore satisfied, given I have held the incident was serious, it was one which required notification (Clause 341) (Clause 34(a) and (b)) of the Occupational Health and Safety Regulations 2001.
44The timing in which such notifications were required to be made under the Act is as soon as is practicable (but no later than seven days) after the defendant became aware of the incident. The defendant did not notify within the said date. It was said when Mr Gerges went to the hospital to see Mr Ammana, he was informed by the sister of Mr Ammana, that WorkCover would be advised. However, the obligation is on the employer to notify an incident at a workplace within seven days. If Mr Gerges had been clearly told the notification had occurred under the Act, he may have mitigated or there may have been no offence, but that did not occur in the circumstances. Therefore, the defendant corporation had an obligation to ensure notification.
45Further, I accept the view of Haylen J in the circumstances as referred to in Inspector Janet Corbett v BBC Hardware Pty Limited and Bunnings Pty Limited (2006) NSWIRComm 401 where he considered a similar circumstance. His Honour took the view that this was an "unintended oversight". In the circumstances before me, I take the view that this was also an unintended oversight.
46In Matter No. IRC1613 of 2011, Mr Gerges individually is charged, given the deeming provisions of s 26(1) of the Act, under s 8(2) with failing to provide a safe system of work for Mr Ammana. He is the sole Director of the corporation and the controlling mind of the corporation. Mr Gerges, under s 26(1), the deeming provisions of the Act, is to ensure a safe system of work at his place of work in the performance of his undertaking for persons at the site, namely, Mr Ammana.
47The particulars relied upon in the s 8(2) charge brought against Mr Gerges as Director of the corporation are the same as to those of which the corporate defendant has been found to be in breach. Therefore, under the deeming provisions as the Director of the corporation, Mr Gerges is also guilty of the charge under s 8(2).
48There is a need to confirm that measures have since been taken to alleviate the risk identified in these charges. Evidence has been placed before the Court on this issue. Since the incident Mr Gerges has leased a truck which is equipped with a HiAb lifting crane which is now used for deliveries. He tendered photographs showing the vehicle with the HiAb attachment with a spa located on the tray of the truck and further photographs showing the trolley which is still used in most instances to remove the spa.
49Mr Gerges opined he does not use the HiAb in all deliveries and it is sometimes more practical to simply slip the spa off the back of the truck and on to the trolley.
50He opined as to the advantages of having the HiAb available on the back of the truck. It is a lifting crane and, where there are difficult conditions encountered on a delivery site, the HiAb can be used to overcome those difficulties and lift the spa over obstacles that might otherwise prevent a more simple means of delivery.
51Since the incident Mr Gerges contacts the customer by telephone with a list of questions with regard to the topography of the delivery site. He asks the customer to identify any difficulties which might be confronted by the corporate defendant's vehicle of the defendant on delivery. He then exchanges emails with the customer confirming the details of the site and upon that basis he decides whether to visit the site prior to the delivery being effected.
52He also requests that the customer sends to him photographs of the relevant areas of the delivery site. He then identifies any additional difficulties and makes the decision whether it is possible for him to practically and safely deliver the spa to the site or whether some other arrangement needs to be made.
53If it is determined that the site is safe, with no particular difficulties, he will proceed with the delivery. He has however formulated a list of instructions for his assistant in relation to unloading the spas, safe loading procedures and the appropriate use of equipment and he requires that an assistant reads those instruction sheets before each delivery.
54The Court expressed its concern as to the new system of work in place. The Court's concern was whether the new system could still expose both the assistant and Mr Gerges himself to holding considerable weight in the movement of a spa. WorkCover has agreed under the "close the loop" policy to re-visit Mr Gerges' operation to assess the new system in place and give guidance as to safe work practice. It is unfortunate that given this offence occurred in October 2009 such as a follow up has not yet occurred. As a small business person, Mr Gerges needs that guidance.
55Some reliance is placed on the evidence from the Swimming Pool & Spa Association of NSW. The industry organisation opined:
The Swimming Pool & Spa Association of NSW is not aware of an existing Australian Standard or documented Guideline/s in relation to the manual handling of spa baths.
...
The Swimming Pool & Spa Association of NSW's observation of the industry relating to the "manual handling" of portable spas is the use of a fork lift (mechanical or manual) or a crane where site access is problematic.
56Mr Gerges appears in his amended system of work to have followed these guidelines.
57Both defendants are entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of each offence.
58In Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99, the Full Bench (Hungerford, Marks and Schmidt JJ) observed (at 106):
We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OHS Act...
59A plea of guilty may attract a greater degree of leniency in penalty. In Winchester v Regina (1992) 58 A Crim R 345, Hunt CJ held (at 350):
A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will be determined upon many different factors. The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the person has pleaded guilty.
60The defendants entered early pleas of guilty to both original summonses and amended summonses in accordance with the principles recited in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104. I find each offence will attract a 25 per cent discounted penalty for the utilitarian value of the plea.
61The Court is entitled to take into account the financial status of both defendants. Mr Gerges revealed he pays $1400 per month, which he is required to do over a period of three years, to repay the insurer for some of the compensation payments that have been paid to Mr Ammana.
62He opines that the company has no substantial assets except for a small equity in the truck which is under a lease purchase agreement. His family relies upon the business to provide an income to him. He has no other source of income. His wife and he own a home in Hinchinbrook which is valued at $380,000. It is, however, the subject of a mortgage to Westpac. The amount of the mortgage is $320,000. They pay $2,000 a month on that loan. They have a further two other loans to the value of $75,000 with payments of $1,550 per month which are for the family car and for repayment to Mr Gerges' wife's sister for money she lent, presumably as a deposit on the house.
63As is already revealed the company is leasing a Hyatt equipment truck and they pay $2,500 per month for that and the lease is for five years. It is only one year into the lease agreement. The Court has examined all the financial records before it. Mr Gerges took from the earnings of the corporation in 2009 the sum of $7,910 for Directors' fees and $25,567 for wages. In 2010, he received Directors' fees of a similar amount and wages of $25,338.
64The financial records establish the business suffered a loss of some $3,000 and in 2010 a small profit after tax of $13,887.
65The evidence was Mrs Gerges takes the orders and assists him on the telephone in relation to the business. The documents do not verify any splitting of the income but the Court is satisfied Mr Gerges receives only a minimum income from the business.
66The Court finds both the corporate defendant and the individual defendant have very limited means.
67I am satisfied Mr Gerges is a good corporate citizen. He provides through his business venture some work for others. He works in an industry where there has been a downturn but he perseveres. The Court takes into account all the above matters but notes penalty must reflect the seriousness of the offence.