Modern Touch Marble and Granite Pty Ltd (Modern Touch) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed George Sleiman to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million.
Johnne Khouri has pleaded guilty to an offence that as an officer of Modern Touch who had a health and safety duty under section 27(1) of the Act, he failed to comply with that duty and thereby exposed George Sleiman to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $300,000.
Mr Khouri has also pleaded guilty to an offence of carrying out work without authorisation contrary to section 43 of the Act. The maximum penalty for the offence is a fine of $20,000.
[2]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
Modern Touch conducted a business in stone masonry, cutting, storing and transporting marble, granite and quartz sheets for use in bathrooms and kitchens from premises in Yennora Road, Yennora.
Mr Khouri was the sole director of Modern Touch and involved in its day to day operations. Mr Sleiman was employed by Modern Touch as a factory offsider performing manual handling tasks and general duties including deliveries. Mr Sleiman commenced that employment on 2 May 2015 and was one of 4 employees.
On 28 September 2015 94 quartz sheets were delivered to Modern Touch in a shipping container. The container was left on Yennora Road outside the premises of Modern Touch. The road where the container was left is cambered with a cross-sectional gradient of 3-4 degrees. The premises of Modern Touch are level ground.
The quartz sheets were stored on an A-frame in the container. There were 47 quartz sheets on each side of the A-frame secured with nylon straps. Each sheet was 3035mm long, 1430mm high and 20mm thick, and weighed 280kg.
The A-frame was intended for use on level ground. A-frames are designed to bear the load and use an angle to ensure that materials stored on them fall back toward the frame rather than forward onto a worker. A-frames are commonly used to store and transport sheet materials including stone slabs.
The A-frame did not serve its purpose on the road. The camber of the road rendered the angle of the A-frame nugatory and the sheets were able to fall forward onto a worker standing in the fall shadow of the sheets. This was the first time that Modern Touch had received a delivery in a shipping container.
On the morning of 2 October 2015 Mr Khouri started to unpack the container using a fork-lift truck (FLT) with the assistance of Mr Sleiman. Mr Sleiman entered the container and separated a sheet with a timber wedge before attaching a clamp, which was then used to lift the sheet with the FLT and remove it from the container.
After 24 quartz sheets had been removed, Mr Sleiman entered the container and stood in the fall shadow of the sheets. The 23 remaining sheets with a combined weight of 6,440kg fell onto Mr Sleiman, pinning him against the container wall. Mr Sleiman received crush injuries to his chest, including a right sided tension pneumothorax, undisplaced anterior rib fractures and bilateral subconjunctival haemorrhages.
Modern Touch did not conduct a risk assessment or implement any reasonably necessary control measures before trying to remove the sheets from the container. Modern Touch did not have a written Safe Work Method Statement (SWMS) in place for the work or a verbal one. At the time of the incident Modern Touch had some basic documented procedures in place for other work.
An alternate method available for the unloading of the container was to use a slab rack. A slab rack has places for vertical poles to be inserted to stop slabs stored on an A-frame from falling forward.
Mr Khouri did not hold a valid FLT licence in New South Wales. The FLT used in the incident was not registered to operate on a public road. There was no form of traffic management in place at the time of the incident. The operation of a FLT is a prescribed high risk activity and an operator of a FLT must a high risk work licence: clause 81 Work Health and Safety Regulations 2011.
[3]
The Offender's Case on Sentence
The offenders relied on an affidavit of Johnne Khouri sworn 30 January 2018. Mr Khouri was not required for cross-examination. The content of the affidavit can be summarised as follows.
Mr Khouri is the sole director of Modern Touch. It was incorporated on 22 November 2006. Modern Touch currently has 8 employees and 5 subcontractors.
Mr Khouri left school in year 10 and obtained an apprenticeship as a stonemason. He has operated Modern Touch from the age of 19 after completing his apprenticeship. Mr Khouri is 33 years of age and married with 4 children.
The usual practice at Modern Touch was to unload slabs from trucks fitted with A-frames, one at a time. The incident arose when proximally 130 sheets of quartz were required in a short time frame for one job. The bulk of the sheets were delivered in the container straight to the warehouse. The container needed to be unloaded within three days, or Modern Touch would become liable for the container rental fees. The container was delivered to Modern Touch on 1 October 2015 without prior notice to Mr Khouri. If he had known that the container was coming he could have made room within the premises to allow the container to be placed on level ground.
Mr Khouri felt under time pressure to unload the container because of the rental fees and because of the job requirements. Mr Khouri could not move the container into the warehouse because it was too large. He did not know who to call to have the container moved into the warehouse or whether any one would do that.
Mr Khouri accepts that he should not have attempted to unload the stone on an uneven surface. He did not appreciate the risks involved. The A-frame inside the container did not have as significant an angle on it as the A-frames used in the warehouse.
In 2012 Mr Khouri worked as a stonemason in Lebanon on and obtained a FLT licence. When he returned to Australia he did not apply for a FLT licence because he had employees to do that work. On the day of the incident he was short staffed and he decided to operate the FLT.
Mr Khouri gave evidence that a slab rack was an alternative to an A-frame and that they could not be used in conjunction with each other. He also thought it would have been impractical to retrofit the A-frame that had been supplied in the container.
Mr Khouri witnessed the accident and was extremely shocked and upset by what happened. He suffered from overwhelming guilt and had trouble sleeping. He suffered symptoms of depression, stress and anxiety and in 2015 is a counsellor once a week. He was prescribed antidepressant and antianxiety medications. He had a number of hospital admissions. His condition caused a great deal of stress in his marriage and on his family relationships. He has suffered headaches and has been taking Panadol Forte for the pain 4-5 times a week.
Mr Khouri supported Mr Sleiman in his recovery and they have become good friends. About two months after the incident Mr Sleiman return to work on light duties, before attending rehabilitation for one month and then returning to work. He is now employed cutting stone, which is a more senior role than he had at the time of the incident.
Since the incident Mr Khouri has become far more aware of safety issues and is more diligent about preventing hazards. Modern Touch would never attempt to unload from a shipping container or on an uneven surface again.
On 30 December 2015 Mr Khouri obtained his FLT licence.
Mr Khouri annexed the financial statements for Modern Touch for the 2015, 2016 and 2017 financial years. Those documents indicate that the business has a turnover of in excess of $4 million. In 2017 the business returned a profit of approximately $60,000, up from around $7,000 in 2016 and 2015. Modern Touch has liabilities to Trade Creditors of approximately $530,000 and in loans from Mr Khouri of approximately $270,000.
The offender relied on an affidavit of Nadim George Sleiman sworn 23 January 2018. Mr Sleiman was not required for cross-examination. The contents of the affidavit can be summarised as follows.
Mr Sleiman had been working for Modern Touch for about two years at the time of the incident. He could not recall an occasion when a shipping container had been unloaded at the premises that it was the first time that he had ever unloaded a shipping container. It is not call much about the incident except that he volunteered to help Mr Khouri.
Mr Sleiman deposed that Mr Khouri did not leave his side during the course of his rehabilitation. Mr Khouri called and visited and was always on hand to get him what he needed. As a result they have become close friends.
Mr Sleiman returned to work 6 to 8 months after the injury in about June or July 2016. He returned to work on light duties. He cannot carry heavy loads and most of his work is cutting stone with specialist equipment.
Mr Sleiman has observed that Mr Khouri is much more focussed on work safety. He has seen him lecture employees about safety procedures, safe habits and correcting unsafe practices. Mr Sleiman deposed that he feels completely safe at work.
[4]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
The section 32 offences are of some objective gravity. There is considerable overlap between the offences, by reason of the way they are pleaded. It is appropriate to deal with the objective seriousness of them together.
The risk of a crush injury when unloading the container was foreseeable. Modern Touch and Mr Khouri failed to consider the risk posed by the storage of the sheets in the container.
The measures required to eliminate or minimise the risk were simple and readily available at no cost. It would have been sufficient to instruct Mr Sleiman not to work in the fall shadow of the sheets and to ensure that he did not do so, by supervising his work. I accept that the circumstances of unloading the container were unique and that the A-frame inside the container was of different specifications to those that Mr Khouri was used to.
The risk was one of serious injury and possibly death.
Mr Sleiman suffered serious injuries that have resolved relatively well.
The section 43 offence is less serious. Mr Khouri had the capability to operate the FLT and his operation of the FLT was not a cause and did not contribute to the incident. Mr Khouri took steps within a short period after the incident to obtain a licence to operate an FLT.
[6]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence because the offender continues to operate in an industry that presents significant risks to the health and safety of its employees. The need for specific deterrence is reduced to some extent by reason of the adverse effects the offences have had on Mr Khouri, his acceptance that he needs to do better and his demonstrated commitment to providing a safer workplace.
[7]
Aggravating factors
The injury harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The injuries sustained by Mr Sleiman were serious. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.
[8]
Mitigating factors
The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Modern Touch has been in operation since 2006 and Mr Khouri is 33 years of age.
The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the evidence that Mr Khouri has recognised the failings of himself and Modern Touch that led to the incident and that he has taken steps to improve his commitment to providing a safe workplace. I am satisfied on the balance of probabilities that the offenders have good prospects of rehabilitation.
The offenders has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders expressed remorse through the affidavit Mr Khouri as well as through his actions in supporting Mr Sleiman in his return to work. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for its actions and demonstrated genuine remorse and contrition.
The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
I have taken into account the personal toll that the incident has had on Mr Khouri. I accept that he has suffered psychological symptoms as a result of the incident and that they have an adverse effect on his health and relationships. I have also taken into account the extraordinary support that Mr Khouri has provided to Mr Sleiman in mitigating the penalty imposed on Modern Touch and on Mr Sleiman.
[9]
Capacity to pay a fine
The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
Modern Touch is the corporate vehicle for the business Mr Khouri and to a large extent his earning capacity is reflected in the company's fortunes. He is married with 4 children. Modern Touch has some assets but they are not liquid and they are required for the profitability of Modern Touch. The accounts do not indicate large sums of money being available to Modern Touch or Mr Khouri. Whilst there are significant gaps in the evidence presented by the offenders, I am satisfied that Modern Touch and Mr Khouri have established that at least to some extent they have a limited capacity to pay a fine.
[10]
Penalty - Modern Touch
Modern Touch Marble and Granite Pty Ltd is convicted.
The appropriate starting point for a fine is one of $150,000 less a discount of 25% to take into account the plea of guilty. I will exercise my discretion to reduce the fine to some extent based on the Modern Touch's capacity to pay.
I impose a fine of $75,000.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that Modern Touch pay the prosecutors costs as agreed or assessed.
[11]
Penalty - Johnne Khouri
Johnne is convicted.
In relation to the section 32 offence, the appropriate starting point for a fine is one of $30,000 less a discount of 25% to take into account the plea of guilty. I will exercise my discretion to reduce the fine to some extent based on the Mr Khouri's capacity to pay.
I impose a fine of $12,500.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
In relation to the section 43 offence I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.
I order that Mr Khouri pay the prosecutors costs as agreed or assessed.
[12]
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Decision last updated: 20 February 2018