Inspector Nicholson v Ibrahim

Industrial Relations Commission (NSW)|2011-03-29|Before: Marks J

Judgment 1As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter. 2The defendant, Romeo Ibrahim, has been charged by the prosecutor, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant is alleged to have breached that Act by reason of the application of s 26 of the Act in that the defendant was a director of REI Construction Pty Ltd ("REI"), which company breached s 10(1). By reason of the provisions of s 26, the defendant is taken to have breached the same provision as REI. 3Relevantly, ss 10(1) and 26 of the Act are in the following terms: 10 Duties of controllers of work premises, plant or substances (1)A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. ... 26 Offences by corporations-liability of directors and managers (1)If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a)he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b)he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2)A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3)Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4)In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 4The proceedings were originally commenced by application for order filed on 29 April 2009. They were amended to their present form by order made on 29 October 2010, at the commencement of a sentencing hearing upon the entry of a plea of guilty, which had been entered that day. 5In its amended form, the charge and particulars are that the defendant being a director of REI, is by virtue of s 26 of the Act taken to have contravened s 10(1) in that REI between about 2 May 2007 and 22 May 2007 being a person having control of premises at 23 Ryde Road, Pymble being premises used by people as a place of work failed to ensure that the premises were safe and without risk to health contrary to section 10(1) of the Act. The particulars of the charge are that:

THE ASSESSMENT OF PENALTY 19As is obvious, the starting point for the quantification of an appropriate penalty is the objective seriousness of the offence. In this case, it is the culpability of REI that needs to be considered. Given the role played by the defendant in REI as its director and, seemingly, its principal representative in connection with the construction site, the culpability of the two must be equal. 20The breach of the Act to which the defendant has pleaded guilty is a most serious one. Not only was there an obvious risk of injury to persons working at considerable height by reason of the total failure, initially, to provide any fall restraint system of any kind, but this persisted throughout the period referred to in the charge other than the provision of some handrails which were not effective. Whilst I acknowledge that the primary responsibility for the provision of a safe work environment may have rested, in contractual terms, on the head builder, this does not exculpate REI as a significant subcontractor from the admitted breach by it of the Act in failing to provide an appropriate and effective fall restraint system for persons whom it engaged or arranged to perform work on the building site. 21In assessing the objective seriousness of the offence, I will take into account the fact that REI endeavoured to secure some improvement from the head builder, but without any success. As was conceded during the course of submissions, it would have been more appropriate, in all the circumstances, for REI to have refused to perform any further work on the building site unless the situation had been rectified by the head builder. In making these observations, I concede that there were considerable cost pressures imposed on REI and that there were time pressures because, apparently on the face of the evidence, the construction site was behind schedule. Nevertheless, none of these matters can excuse the serious breach of the Act that was created by this state of affairs. 22I would, however, assess the culpability of REI, and thus the defendant, as something less than that of the head builder, Millennium Projects Australia Group Pty Ltd. 23In determining penalty, it is also necessary to take into account the deterrent effect that any penalty will provide both generally within the construction industry and specifically in terms of this defendant. The Court was advised by the defendant's solicitor during the course of the hearing that the defendant remains employed in the construction industry. Nothing that has been put in the proceedings would deflect the Court from considering both aspects of deterrence in determining the appropriate penalty, and I shall do so. 24There are some subjective factors that the Court is entitled to take into account in mitigation of the penalty. The defendant entered a plea of guilty immediately upon the amendment of the application for order. However, this must be seen in the context that the proceedings had been fixed for hearing on two earlier occasions and the defendant, on each occasion, had maintained a plea of not guilty. Nevertheless, the defendant is entitled to some discount, as conceded by the prosecutor, and I intend allowing a discount of 5 per cent to reflect the utilitarian value of the plea. 25It was submitted on behalf of the defendant that, in reality, the breaches which occurred during the period charged were ultimately brought about by the overall control exercised by Mr George Nahed over the construction site and the directions that he had given to persons employed or engaged by REI. Furthermore, as is evidenced from the correspondence between the defendant and representatives of the principal builder, the defendant was alive to the unsafe situation that applied at the building site and endeavoured to do something about it. Furthermore, REI did have a written occupational health and safety plan, albeit that it contained definite deficiencies. 26I do not propose to allow any discount for these matters because they are accommodated within the assessment of the objective seriousness of the offence and have been so described earlier in these reasons for judgment. 27The defendant has a prior conviction for an offence under the Act. Accordingly, the maximum penalty that may be imposed upon him is the sum of $82,500 or imprisonment for two years or both. The prosecutor did not seek a custodial sentence, nor, in the circumstances, is it appropriate that a custodial sentence be imposed. 28The prior offence was the subject of proceedings before Backman J in this Court in Inspector John Patton v Romeo Elias Ibrahim and ors [2010] NSWIRComm 109. Those proceedings also arose out of the commission of an offence by REI and Mr Ibrahim was charged with the same offence pursuant to s 26(1) of the Act. The offence occurred on 18 November 2006 at a building site in Kiama. Some persons removing formwork had placed them against a newly constructed brick wall which was "green" and therefore liable to collapse. The wall did in fact collapse injuring an employee of another contractor. Mr Ibrahim who had pleaded guilty was fined the sum of $13,000. The maximum penalty was $55,000.

CAPACITY TO PAY 29The defendant submitted that the penalty imposed should be fixed by reference to his capacity to pay. The proceedings were adjourned to enable the defendant to adduce evidence concerning his financial circumstances. An affidavit sworn by the defendant on 26 November 2010 was filed on his behalf by solicitors then acting for him. By the time the matter came on for hearing, those solicitors had ceased to act for the defendant. The defendant did not appear at the further hearing. After discussion with counsel for the prosecutor, I determined to admit the affidavit for the purpose of considering the appropriate sentence to be imposed in all the circumstances. In doing so I had regard for the provisions of s 6 of the Fines Act 1996, which is in the following terms: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a)such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b)such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 30Counsel for the prosecutor pointed out that the affidavit was deficient in a number of respects, particularly in failing to annex certain financial records and furthermore the prosecutor was precluded from testing the material in the affidavit. 31In essence, the defendant swore that he was made bankrupt on 25 September 2009 with creditors of $300,000. I infer from the affidavit that he was involved in a business venture that had failed. He said that for the financial year ended 30 June 2010, he earned wages of approximately $28,000 gross and that at the time of swearing the affidavit he was employed on a salary of approximately $1200 per week. The defendant did not own any assets, was renting premises in which he and three school age children resided, all of whom were dependent upon him. He makes no mention of the presence of any spouse or partner. 32The defendant said that he did not own a car, did not hold a driver's licence and was then working in Canberra and reliant on other persons to drive him to and from Canberra on weekends. Some of his children attended private schools and he owed approximately $8,000 in school fees. He anticipated that in the course of 2011, his children would attend government schools. The defendant said that he was not an Australian citizen, he did not currently hold a permanent visa and is required to pay annual medical expenses of between $1,500 and $3,000 for each child. Furthermore, he had then recently been seeking treatment for an injured knee. 33The provisions of s 6 of the Fines Act were considered by a Full Bench of the Court in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158. There is also reference to s 6 of that Act in the Full Bench decision in McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353, although that latter case is more concerned with the application of the section to corporate defendants. 34Nevertheless, a number of principles may be derived from the above authorities. Relevantly, for the purpose of these proceedings, the onus rests on a defendant to furnish such information in support of an application under s 6 as is appropriate, albeit to the civil standard. The Court must be satisfied as to the truth of the evidence. The prosecutor should be given an opportunity of testing that evidence. Notwithstanding the mandatory provisions of s 6, the penalty imposed by the Court must ultimately reflect the objective seriousness of the offence. 35I am prepared to assess the defendant's capacity to pay as being reflective of straitened financial circumstances. However, even accepting his evidence in his favour at its highest, this would demonstrate in essence no capacity to pay any fine no matter how small. 36The defendant's breach is a serious one. I am constrained to reflect the objective seriousness of the offence. As I have indicated, the maximum penalty is the sum of $82,500. Affording some leniency to the defendant to reflect a general understanding that he has straitened financial circumstances, but nevertheless having regard to the seriousness of the offence, I intend imposing a monetary penalty of $25,000. In doing so, I take into account the other objective and subjective factors to which I have referred. 37The prosecutor sought a moiety of the penalty and an order for costs, neither of which was opposed.

ORDERS 38I make the following orders:

The defendant is found guilty of the offence with which he is charged and convicted accordingly.
I impose a monetary penalty of $25,000 with a moiety to the prosecutor.
The defendant is to pay the costs of the prosecutor as assessed in default of agreement.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2011

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