SafeWork NSW v Akkari Group Pty Ltd

District Court of NSW|2022-04-22

BACKGROUND

As at 25 May 2019, the defendant was engaged in the business of construction of a multi-storey, mixed use building ('construction project') at 36-38 Showground Road, Gosford ('worksite').
At all material times, All Saints Family Trust ('ASFT') was the registered owner of the worksite. On 21 May 2018, ASFT entered into a contract with the defendant to construct a multi-storey, mixed-use building at the worksite. The construction project at the worksite was a workplace for the purposes of s 8 of the WHS Act.
The defendant was the principal contractor and person conducting a business or undertaking for the construction project at the worksite. It engaged: 1. Mr Mark Akkari ('Mr Mark Akkari'), the director of the defendant, as the project manager; 2. Mr Maroun Akkari ('Mr Maroun Akkari') as the worksite supervisor who managed the day-to-day construction activities; and 3. Mr Antonio 'Sam' Frances ('Mr Frances') as the worksite's Foreman, who supervised and controlled the workers, and directed the delivery, placement and finishing of concrete at the worksite.
The defendant engaged the following contractors for the construction project: 1. Australian Consulting Engineers Pty Ltd ('ACE') as the principal design engineers. ACE were not engaged to perform formwork design or certification of any temporary works for the construction project; 2. Form Group Contractors (NSW) Pty Ltd ('Form Group') to provide labour to construct the formwork and supporting falsework; 3. BFB Concrete Pumping Pty Ltd ('BFB') to provide and deliver concrete, a concrete placing boom, and an operator to construct the formwork and falsework at the worksite. BFB engaged Mr Bakos Bou-Francis, Mr Toni Bou-Francis, and Mr Zakis Bou-Francis to work, deliver concrete, and operate a concrete pumping boom at the worksite. They were workers for the purposes of s 7 of the WHS Act; and 4. Six Pound Australia Pty Ltd ('Six Pound') to place and finish concrete on the formwork and supporting falsework at the worksite. Six Pound engaged workers at the worksite including Mr Mosese Kaipeka Kuli ('Mr Kuli'), who was a worker for the purposes of s 7 of the WHS Act.

LEGAL OBLIGATIONS & RELEVANT GUIDANCE MATERIALS

At all material times, the defendant had legal obligations under: 1. Section 46 of the WHS Act that each person with the duty must consult, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter, so far as is reasonably practicable; 2. Clause 34 of the Work Health and Safety Regulation 2011 ('Regulation') that requires duty holders to identify reasonably foreseeable hazards that could give rise to health and safety risks; and 3. Clause 35 of the Regulation that requires duty holders to eliminate risks to health and safety so far as is reasonably practicable, and where it is not, to minimise those risks so far as is reasonably practicable.
Guidance materials were available to assist the defendant, including:

Australian Standard AS3610.1:2018 - Formwork for concrete, Part 1: Specifications (16 April 2018). It sets out the requirements for the specification and documentation of architectural, structural, and construction information necessary for formwork design and construction.
WorkCover Code of Practice: Formwork (1998) offers guidance on preventing injury to persons erecting and dismantling formwork and associated equipment. It provides that formwork must comply with AS3610 Formwork for Concrete and that the adequacy of the formwork components of a suspended slab or beam is inspected and certified by the engineer prior to its pouring per clauses 5.3.4.
SafeWork Australia also provides a guide on information on the design, construction, and dismantling of falsework, and how to manage formwork and falsework risks at a workplace. This includes: 'Inspections and clearance to load should occur at key stages during construction of formwork including when formwork is being loaded, for example with formwork components equipment or prestressed tendons and prior to its completion. A separate certification process should occur when the formwork is complete and prior to the concrete being poured. A competent person such as an engineer with experience in structural design (certifying engineer) should inspect and certify the completed formwork meets the design specifications and is structurally sound before it is loaded. Generally, certification will not be required for formwork and falsework in housing construction work. The certifying engineer shall complete and provide a formwork structural certificate to the person with management or control of the formwork, often the principal contractor.'

SYSTEMS OF WORK PRIOR TO THE INCIDENT

Prior to the incident the worksite's had no design documentation for the building's formwork and falsework, and no formwork structural certificate signed by an engineer. The defendant also had no policy and procedure for erecting and stripping the multistorey shoring, concrete delivery, placement sequence and discharge heights and rate of rise, or for the sequence and method of concrete placement and the minimum elapsed time.
The defendant had a Work Health and Safety Management Plan that did not deal with formwork and supporting falsework, and it had a generic Safe Work Method Statement ('SWMS') entitled Concrete Construction - Pour and Finish, which stated that: 'Formwork is to comply with AS3610 Formwork for concrete. A person who erects, alters or dismantles formwork and falsework must be competent to do the work safely. A licence is not required to erect formwork; however, the person carrying out the work should be provided with or have received suitable training in the work.'

STEPS TAKEN AFTER THE INCIDENT

A Factual Inspection Report followed an inspection of the site by Inspector Kearney on 27 May 2019 (Tab 10 of the Tender Bundle). A Factual Inspection Report followed an inspection of the site by Inspector Estreich on 3 July 2019 (Tab 11 of the Tender Bundle).
A series of photographs were taken by Inspector Estreich on 3 July 2019. Those photographs show the surface of the concrete pour and the result of the collapse. Of particular note are photographs 1, 3, 6, 7, 15 and 21.
It was from the tangle of concrete and reinforcing bars that at least three Six Pound Workers were pulled to safety.
Inspector Estreich took some further photographs on 3 July 2019 of the underside of the collapse. Five of those photos are behind Tab 9 of the Tender Bundle. Those photographs show a number of supports and structures that had collapsed.
Paragraph [32] of the Agreed Statement of Facts ('ASOF') includes a letter from ACE as to the main cause of the collapse. Part of the letter is quoted in [32] of the ASOF.
Paragraph [33] of the ASOF makes reference to an expert report from EA & Associates Consulting Engineers dated 17 September 2019 which provides further information as to the cause of the collapse. It states: 'f. The general installation quality of the formwork and falsework for the level 1 slab pour was not inline with good industry practice.'
In short, the expert opinion is that the collapse occurred because of mismatched, poorly constructed and assembled supporting structures underpinning the concrete pour.
The defendant complied with several Prohibition Notices issued by SafeWork. It also provided a SWMS for remediation work in consultation with ACE and an inspection of the remaining falsework and formwork.

SENTENCING

The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A, which sets out the purpose of sentencing; 2. Section 21A, which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22, which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81]. Subjective factors should not be permitted to produce a sentence that fail to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.'
His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the WHS Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The risk of workers in the vicinity of the framework and supporting falsework suffering serious injury or death as a result of falling from or being struck, trapped, crushed or otherwise coming into contact with collapsing formwork, is foreseeable and obvious. It is more serious because of a previous collapse at the site almost exactly one year to the day.
Employers must take steps to protect workers against risks created by the inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the graduation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];
The availability of steps to eliminate or minimise the risk: Ibid [34];
Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] & [53];
Whether the risk was known, or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

The following matters are those that are relevant in determining the objective seriousness of the offending: 1. The risk of a person suffering serious injury or death as a result of being struck, crushed or trapped by the collapse of partially built structures was known, or ought to have been known, by the defendant. The hazard was glaringly obvious. The excavated wall had previously collapsed, and the defendant had retained an expert to advise as to what steps needed to be taken to make-safe the site, and then virtually ignored that advice. 2. Paragraph [32] of the ASOF includes advice from ACE as to the cause of the collapse and in [33] of the ASOF an expert report from EA & Associates Consulting Engineers of 17 September 2019 provides guidance for remediation. 3. In short, the expert opinion is that the collapse occurred because of mismatched, poorly constructed and assembled supporting structures underpinning the concrete pour left it vulnerable to collapse. 4. The risk was likely to re-occur if the steps recommended by the retained experts was not taken. The Court accepts that the risk was foreseen by the defendant, and this has the effect of aggravating the nature and seriousness of the offence. 5. The contents of paragraph [20] of the ASOF exposes the vice in this matter, with regard to the breaches of s 19(1) and s 26(2) of the WHS Act. In short, there would appear to have been no proper approach being taken by the defendant to deal with a serious engineering exercise. This failure is highlighted by the Report in paragraphs [32] and [33] of the ASOF. 6. The failure of the defendant is despite obligations being placed upon it pursuant to the Regulation described in paragraph [34] of the ASOF. 7. The seriousness of the breach by the defendant should also be considered in the context that it had available to it a number of guidance documents, as are set out in paragraphs [36]-[39] inclusive of the ASOF. 8. Particular regard must be had to the step-by-step process of inspection and certification set out in the SafeWork Australia Guide referred to in paragraph [39] of the ASOF. 9. It is evident that the failures of the defendant led to the construction of an unsafe structure, being the falsework and formwork, and such a structure was unsafe for persons to work either on, or in the vicinity of. 10. Having constructed the unsafe structure, concrete workers and persons involved in the pouring of the concrete were put at risk by the requirement to carry out work on top of the structure. 11. The risk of the collapse of the poorly constructed and ill-matched formwork and falsework is well known, hence the Codes of Practice. That risk was a serious risk of serious injury or death, and it is a matter of almost pure luck that the workers involved in this matter were not seriously injured.
Having regard to the seriousness of the risk and the straightforward steps that could have been taken to overcome that risk, as detailed in the Summons, I am of the view that this offence objectively falls towards the high end of the middle range of seriousness.

PENALTY

The maximum penalty for the s 26(2) and the s 32 offence is $1.5 million.
The maximum penalty for the s 19(1) and the s 32 offence is $1.5 million.
The maximum penalty for the s 38(1) offence is $50,000.00.
In Director of Public Prosecutions v Dalgleish [2017] HCA 41 at [10], the majority stated as follows: 'it is also important to note the consideration referred to in s.5(2)(a) - the "maximum penalty prescribed for the offence", in this regard in Markarian, be required, the plurality said: Careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them, secondly, because they invite comparison between the worst possible case and the case before the Court at the time, and thirdly, because in that regard they do provide, taken and balanced with all of the other relative factors, a yardstick.'
The defendant asserts that there is a discrete issue related to the second offence. The defendant submits that the s 19(1) and the s 26(2) duty-related charges are so similar as to be the same charge under a different guise. The defendant's submissions on that point are as follows: '(a) Section 19(1) relates to the primary duty of care and is a duty that is often pleaded and dealt with by this Court. The section 26(2) duty is a duty placed on a PCBU that installs, constructs or commissions plants or structures. It has been used in this particular case to address the construction and failing of the formwork, which is the same item addressed in the s.19(1) charge. (b) Clearly, substance of the two charges relates to the same failure in the formwork and the three pleaded measures in the s 26(2) charge are identical to pleaded measures 19 b, c and d in the s 19 (1) charge. The only difference between the two charges are pleaded measures 19 a and 2 in the s 19(1) charge. In our submission the s 26(2) charge is completely subsumed by the s 19(1) charge and should be treated as such. (c) The prosecutor's submission at paragraph 53-55 is apt.'
The prosecutor's submissions at paragraphs [53]-[55] are as follows: '[53] The Court will note that there is an overlap in the pleaded failings of the Defendant with regard to the s.26(2) and s.19(1) matters. [54] Further, the pleadings place the risk for which the Defendant is charged in both the s.26(2) and s.19(1) matters to be on the same day at the same premises. [55] The Court will therefore have regard to the totality principle when determining the penalty to be imposed upon the Defendant : see Postiglione v The Queen [1977] HCA 26 per McHugh J ;Johnson v The Queen [2004] HCA 15 at [18]; and noting Hay v The Queen [2009] NSWCCA 228 at [124].'
I accept that there is a significant overlay between the s 19(1) charge and the s 26(2) charge, and I have taken that into account when assessing the totality of the conduct that gives rise to the breach, in accordance with the High Court in Postiglione v The Queen (1997) 189 CLR 295.
With regard to the s 38 offence, I accept that the incident having happened on a Saturday, the defendant did not think anyone would answer the phone, if he had called SafeWork. Whilst this is a poor excuse, I am of the view that the need for deterrence with respect to this breach is low. Similarly, I do not accept that this breach looms large in the assessment of objective seriousness.

DETERRENCE

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court is to ensure that a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
General deterrence is to be approached in the context of the industry in which the defendant is engaged, the types of duties, as well as the broader hazards and risks associated with the industry. The industry must have, once again, brought to its attention the requirement to engage properly qualified persons to advise, design, inspect and, in some circumstances, certify that the reasonably complex engineering tasks are carried out as safely as possible. The failure to obtain and give effect to such engineering advice is unacceptable and must be condemned. The consequences of doing so are plainly dangerous.
Moreover, a message needs to be sent to principal contractors of construction sites that they cannot take shortcuts when it comes to managing serious and known risks to which their subcontracted workers may be exposed.
The construction industry is notoriously dangerous and involves the management of a number of different risks, including the risks associated with excavation, falsework and formwork.
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … '[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity of the defendant to reoffend. I note that the defendant continues to perform the same work as it did when the incident occurred.
It must be brought to the forefront of the defendant's mind that in doing work which creates significant and serious risk to the persons performing the work, proper preparation, planning and serious advice must be undertaken to eliminate or if not able to be eliminate at least minimise, the risks to persons performing the work.
I accept that the prospects of rehabilitation of the defendant are fair, but the need for an element of specific deterrence is still very necessary in these circumstances.

PRIOR CONVICTIONS

The Prior Conviction Report dated 11 April 2022 (Tab 6 of the Tender Bundle) shows no prior convictions. However, the defendant entered a plea of guilty before me on 22 April 2022 for an offence under s 19(1) and s 32 of the WHS Act for an incident that occurred at the same building site on 23 May 2018. I will sentence the defendant for that offence contemporaneously to these offences. The company has been convicted of all those offences.
The prosecutor submits that these convictions bear upon the ability of the defendant to call upon the natural leniency of the Court.
The defendant, appropriately accepts the prosecution submission that this is a mid-range offence, as clearly there should have been more work done on the engineering and confirmation of the engineering and set-up.
This was one part of a much larger pour which collapsed. The differentiation as to the cause of the collapse is important.
The defendant asserts that based on one expert, it is arguable that the failure only occurred due to the fixing at the base of the ramp of the supports. If this were the case, it is submitted, the failure or at least the cause of the failure is of a lesser seriousness than if the supports themselves were inadequate. A defendant is entitled, it is further submitted, to the benefit of the doubt and given there are two competing theories relied on by the prosecutor, the Court should find that the cause of the collapse was related to the way the supports were fixed at the base of the ramp. The defendant further notes that even if the Court accepts this submission that the use of mixed supports was not good practice.
Whilst I accept that this was an engineering failure, I cannot remove from my consideration that the defendant was on notice that additional work done on the engineering, ought to have been confirmed as done, before any workers were placed in the position of peril that the three Six Pound Workers were exposed to, in addition to any other workers in the vicinity of this area. The fact that the defendant had received engineering advice approximately one year prior to this incident, and took very few steps in accordance with that advice, is something that I consider minimises the leniency that might ordinarily be afforded to the defendant.
I consider the defendant's conduct as exemplifying a flagrant disregard for the safety of its workers, and anyone else on the work site. One year prior to this incident, at the same site and as a consequence of the excavated wall, a man was very seriously injured. At that time the defendant obtained expert advice, and then all but ignored it.
One year later, a similar event occurred and amazingly, but fortunately, the three workers who were in the vicinity were lucky enough to be pulled to safety by co-workers. It is hard to imagine a more cavalier attitude to the obligations required under the WHS Act than demonstrated here. This demands a penalty that provides significant general and specific deterrence.

AGGRAVATING FACTORS

The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a 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].
It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient.

MITIGATING FACTORS

The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
The defendant entered a plea of guilty, and as such this plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.
However, whilst the prosecutor concedes that the defendant is entitled to some discount for the utilitarian benefit of the plea, but less than 25%, I accept that the timing of the plea which was entered after 9 mentions, was not at the first available opportunity. However, there were ongoing negotiations before the parties with regard to another charge. Therefore, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
The defendant has made a number of significant changes to its safe systems of work since the incident, and I accept is committed to do so. I accept that the defendant has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by the defendant, and this has been demonstrated by Maroun Akkari's affidavit (Exhibit 1). I accept that the defendant has shown remorse and contrition and as such is entitled to some leniency on that basis.
Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I note that since the incident, Maroun Akkari has undertaken a number of Workplace Health & Safety courses and the certificates of completion are annexed to his affidavit. I accept that the defendant is reasonably unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risk that the workers were exposed to.
There is an overlap in the pleaded failings of the defendant with regard to the s 26(2) and s 19(1) matters. Further, the risk for which the defendant is charged are matters on the same day and at the same premises. Therefore, I have had regard to the totality principle in determining the penalty to be imposed: Postiglione v The Queen [1997] HCA 26 per McHugh J; Johnson v The Queen [2004] HCA 15 [18]; and noting Hay v The Queen [2009] NSWCCA 228 at [124].
The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of the defendant. The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
I note the defendant makes submissions about the size and structure of the company, in the context of the ongoing viability of it and the work it may perform in the future.
The defendant does not make an application under the Fines Act 1996 (NSW) ('Fines Act').
The affidavit of Maroun Akkari (Exhibit 1) sets out the details of the company.
The submissions refer to the defendant being a small family company, has few employees, and that there have been some family difficulties including kidney disease, and Mark Akkari, after taking over the company, 'decided was not for him'. The defendant submits that it is a very small company 'with barely any works now being completed and little prospect of future major works'.
The affidavit does not attach any financial records of the defendant, its directors and relevant family members. There are no balance and loss statements, no company records or bank statements. In those circumstances, I find it very difficult to accept that the defendant ought be afforded any leniency on the basis of the financial situation that the company and the family members, absent any direct evidence in support of those submissions, and I decline to do so.

PENALTY

I make the following orders: (1) The defendant is convicted. (2) The appropriate fine for the s 38 offence (Matter No. 2021/117708) is $50,000, and that will be reduced by 25% for the utilitarian value of the plea. (3) The defendant is therefore fined $37,500. (4) The appropriate fine for the s 19(1) offence (Matter No. 2021/117757) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea. (5) The defendant is therefore fined $281,250. (6) The appropriate fine for the s 26(2) offence (Matter No. 2021/117812) is $375,000 and that will be reduced by 25% for the utilitarian value of the plea. (7) The defendant is therefore fined $281,250. (8) 50% of the fines imposed are to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW). (9) The defendant is to pay the prosecutor's costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Amendments 10 August 2022 - # The following Orders previously found on cover sheet (1)-(5) under heading "Decision" and also previously found at paragraph 88 under heading "Penalty" revoked on 18 July 2022 and new Orders substituted:

Revoked Orders: (1) The defendant is convicted. (2) The appropriate fine is $800,000.00, and that will be reduced by 25% for the utilitarian value of the plea. (3) The defendant is therefore fined $600,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW). (5) The defendant is to pay the prosecutor's costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). 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: 10 August 2022

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Australian Standard AS3610.1:2018 - Formwork for concrete, Part 1: Specifications (16 April 2018) WorkCover Code of Practice: Formwork (1998) Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Akkari Group Pty Ltd (Defendant) Representation: Counsel: Mr M Scott (for the Prosecutor) Mr M Shume (for the Defendant)

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