Milia Hanna (Second Defendant)
Representation: Mr C Magee, of Counsel (for the Prosecutor)
Mr C O'Neill, of Counsel (for the Defendants)
[2]
Solicitors: Ms J Corea, Department of Customer Service (for the Prosecutor)
Mr C Habra, Centurion Lawyers (for the Defendants)
File Number(s): 2020/323248 and 2020/323142
Publication restriction: Nil
[3]
JUDGMENT
On 30 August 2021, Milia Hanna entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 ('the Act') that she did fail to comply with her health and safety duty, thereby exposing workers, particularly William Finch ('Mr Finch'), to a risk of death or serious injury. Milia Hanna's duty arose out of s 19(1) of the Act, being a person conducting a business or undertaking as the owner builder of 28 Rocco Place, Green Valley NSW ('the site'). The maximum penalty for Milia Hanna's offence is $300,000.00.
On 30 August 2021, Anthony Hanna pleaded guilty to an offence under s 32 of the Act that he did fail to comply with his health and safety duty, thereby exposing workers, particularly Mr Finch, to a risk of death or serious injury. Anthony Hanna's duty arose out of s 28(b) of the Act, being a worker at the site and engaged by Milia Hanna to act as her agent and/or representative at the site. He was the Project Manager and Site Supervisor for the site, responsible for the supervision of workers who were undertaking work at the site. The maximum penalty for Anthony Hanna's offence is $150,000.00.
The contraventions arise from an incident on 17 November 2018 at the site (now the defendants' home), where three persons, Mr Finch, Mr James Todd ('Mr Todd') and Mr Stevan Nedic ('Mr Nedic'), were exposed to a risk of death or serious injury, being the risk of a fall from height. Unfortunately, Mr Finch was fatally injured.
The prosecutor tendered the following;
1. Prosecution Tender Bundle which became Exhibit A;
2. Victim Impact Statement of Katelyn Finch which became Exhibit B; and
3. Accountants Report from Vincent's Accountants dated 9.11.21 which became Exhibit G.
The defendants tendered the following:
1. Affidavit of Anthony Hanna sworn 26.10.21 which became Exhibit C;
2. Affidavit of Milia Hanna sworn 26.10.21 which became Exhibit D;
3. Bundle of documents headed 'Defendants Apology and Character References' which became Exhibit E; and
4. Supplementary affidavit of Anthony Hanna sworn 9.11.21 which became Exhibit F.
[4]
Background
Anthony and Milia Hanna were both directors of Childcare Developments Group Pty Ltd ('Childcare Developments') as of February 2020. Childcare Developments is the trustee of the Hanna Family Trust to which Milia Hanna is a beneficiary and Anthony Hanna is an unnamed beneficiary.
On 16 May 2018, Milia Hanna lodged a Complying Development Certificate Application to construct a two-storey residential dwelling with swimming pool on the property at the site ('the works'). The costs of the works were estimated to be $400,000.00.
On 31 May 2018, Milia Hanna lodged a Development Application with Liverpool City Council for the works and lodged an application with NSW Fair Trading - Home Building Service for an Owner Builder Permit under the Home Building Act 1989 (NSW) ('HB Act').
On 8 June 2018, NSW Fair Trading issued Milia Hanna an Owner Builder Permit under the HB Act, Milia Hanna having met the requirements by:
1. Completing the accredited unit 'Prepare to Work Safely in the Construction Industry' which formed part of Certificate I in Construction, from Australian Qualification Training;
2. Obtaining a Construction Induction card; and
3. Successfully completing the course 'NSW Owner Builder Course' through Absolute Education which involved five units which form part of Certificate I in Construction, including the unit 'Apply OH&S Requirements, Policies and Procedures in the Construction Industry'.
Milia Hanna obtained insurance for construction at the site in her name and capacity as Owner Builder. She did not appoint a principal contractor for the works however she did appoint Anthony Hanna to act as her agent and/or representative in relation to the works.
Milia Hanna engaged a number of contractors to undertake the works, including All General Air Conditioning Pty Ltd ('All General'). Anthony Hanna was responsible for the selection, engagement, liaising with and instruction of contractors undertaking work at the site.
With respect to All General:
1. Mr Nedic and Matthew Hobbs ('Mr Hobbs') were the directors;
2. Mr Finch was employed as an Installation Manager. Mr Finch had over 10 years of experience in the air conditioning industry and had completed relevant training; and
3. Mr Todd was employed as a Refrigerant Mechanic. He had been working at All General for 4 years.
All General had previously done work for Childcare Developments. All General were directed by Anthony Hanna to provide any invoices in relation to work undertaken at the site to Childcare Developments.
Neither Anthony Hanna nor Milia Hanna, or anyone on their behalf, provided a site induction to contractors and workers who came on site. Similarly, no Site Safety Management plan or other safety related documents were provided to any workers when they commenced work at the site. No workers were required to provide to Anthony Hanna or Milia Hanna a SafeWork Method Statement or other safety related document when they commenced work on site.
Both Anthony and Milia Hanna attended the site while certain works were being performed.
[5]
The Incident
As at 17 November 2018, the dwelling was partially constructed. The internal timber frame structure had been completed, but no plastering or other internal finishes had been installed. Scaffolding had been erected around the external areas of the dwelling.
The design of the building included a void area on the western side of the dwelling where a staircase was to be installed ('Staircase Void'). The Staircase Void was approximately 2.5m wide. The metal spine of the staircase had been installed. There were no treads, handrails or edge protection installed.
The design of the building also included a void area over the entrance of the dwelling ('Entrance Void'). The void went from the ground floor to the ceiling of the second storey and was 1.7m by 4.48m. The height of the Entrance Void from the first storey was 3.33m.
The leading edge of the floorboard of the hallways on the second storey at the Entrance Void measured 1.2m in width. The height of the opening at the leading edge was approximately 2.8m.
There was no (or no adequate) edge protection, such as barriers or handrails or guardrails across the opening at the leading edge of the hallway at the Entrance Void.
As at 17 November 2018, All General had completed approximately 60% of the works they were engaged to carry out. However, further works were required, and Anthony Hanna was contacted to discuss the attendance of All General workers to the site on 17 November 2018 to perform further work.
Prior to All General workers attending the site, neither Anthony Hanna nor Milia Hanna (or anyone on their behalf) undertook an adequate inspection of the dwelling to verify that adequate edge protection was installed around the partially completed metal staircase, or at the leading edges of the floor in the vicinity of the Entrance Void.
Previously, Anthony Hanna had seen that the Stairwell Void was covered by timber. It was also reported on or around 13 November 2018, that there was a timber barricade in the area of the Entrance Void.
On 17 November 2018 at approximately 7:20am, Mr Finch and Mr Todd of All General attended the site. Neither had attended the site prior to this date. They waited for their supervisor from All General, Mr Nedic, to attend the site.
When Mr Nedic arrived, it was decided they should do a 'walk through' to see what needed to be done. It was part of All General's standard practice that its workers would conduct a site inspection prior to commencing to undertake work.
Neither Anthony Hanna nor Milia Hanna were on site when the All General workers commenced work at the site. As such, no one provided the All General workers with a site induction prior to them commencing work at the site. Similarly, no Site Safety Management plan, SWMS or other safety related documents were provided.
Mr Todd, Mr Finch and Mr Nedic walked through the open gates at the site entrance and into the dwelling. They were provided with no warning about the fact the partially completed internal metal staircase did not have edge protection. Despite this, Mr Nedic determined it was safer to walk up the stairs than to set up an extension ladder to access the second storey because the floor was dusty.
The All General workers were not warned that there were open edges and voids on the second storey where there was a risk of falls from heights. There were no barriers or fencing erected inside the dwelling preventing persons from accessing the metal staircase or otherwise going up to the second storey.
Mr Nedic, Mr Todd and Mr Finch then proceeded up the metal staircase. They turned left and walked down the hallway to the back of the dwelling to a location where some partially completed air conditioning ducting had been installed. They then proceeded back down the hallway towards the area near the Staircase Void.
Mr Nedic and Mr Finch then assessed the ducting in the middle of the hallway. At this time, Mr Todd turned around to look at the original duct in the ceiling space. At or around 7:32am, Mr Nedic and Mr Todd heard a loud thump from the direction of the front of the dwelling.
They looked around and could not see Mr Finch standing in the hallway area. They proceeded down the hallway to the open leading edge at the Entrance Void. They observed Mr Finch lying on the ground floor underneath the open leading edge at the Entrance Void. There were no handrails or fall prevention devices installed at the open leading edge at the Entrance Void.
Emergency services were contacted at or about 7:35am. Mr Nedic and Mr Todd rendered first aid to Mr Finch. NSW Police arrived at the scene and assisted with the provision of first aid. NSW Ambulance Service paramedics attended the scene at about 7:49am.
Mr Finch was transported to Liverpool Hospital. He sustained catastrophic injuries from the fall, including inter alia, multiple compound skull fractures, multiple contusions, multi intracranial haemorrhages, and associated spinal and facial bone fractures. Tragically, Mr Finch succumbed to his injuries and passed away on 18 November 2018 in hospital.
[6]
SafeWork NSW Inspection
Inspector Murphy made the following observations:
1. Access to the second storey was via internal stairs and the stairs did not have handrails, leading to a fall of greater than 2 metres at the top of the landing; and
2. A void of the front entry area where Mr Finch fell did not have protection in the form of a handrail.
Inspection of the Site
Prior to the incident neither Anthony Hanna nor Milia Hanna conducted an adequate inspection of the dwelling prior to work being undertaken to ensure there was adequate edge protection in the vicinity of the voids or where there was a risk of falls. Neither of the defendants were present when Mr Nedic, Mr Todd and Mr Finch attended the site and no site inspection was conducted with either of the defendants present.
Fall Prevention
Neither Anthony Hanna nor Milia Hanna:
1. Took steps to have adequate edge protection, such as treads, handrails or guard railing, installed to the partially completed metal staircase; and
2. Undertook to adequately inspect and verify that edge protection was installed to prohibit any person from accessing the second storey of the dwelling until adequate edge protection was in place.
Mr Nedic and Mr Todd stated there were no fall prevention devices on the staircase leading up to the second storey, nor was there any protection in place at the edge of the void from which Mr Finch fell. Further, Mr Todd stated 'there was no railing across the void overlooking the hallway'.
Information and Instruction
No warning was provided by either Anthony Hanna or Milia Hanna regarding the risks involved with working from the second storey, including the risk of falls and the risks associated with the open edges/voids or any control measures to manage those risks.
Given the works were valued at $400,000.00 and there was no principal contractor, it was Milia Hanna's responsibility to prepare a Site Safety Management Plan that addressed activities that involved working at heights in the dwelling which should have identified the hazards and risks associated with the voids and control measures to be implemented.
[7]
Systems of Work After the Incident
SafeWork inspectors attended the site on the date of the incident and issued prohibition notices and a cessation of work direction until such time as the risk posed to workers by open voids at the site was remedied.
Following the incident, Anthony Hanna directed for their contractor, 21st Century Carpentry Pty Ltd, to attend the site and undertake rectification work in respect of the voids and penetrations. Subsequently, the voids were covered with timber and handrails were installed on open leading edges.
[8]
SENTENCING
The penalty to be imposed must be one which will give overall effect to the policy of the 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 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 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.'
[9]
OBJECTIVE SERIOUSNESS OF THE OFFENCE
The duties of the defendants required that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendants had control and influence over the workers at the site, in particular Anthony Hanna. 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, but 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].
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.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the 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 defendants' duties required them to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The risk of a person being injured when falling through an unprotected void on the second story of a residential construction site onto a concrete floor approximately 3.3m below is obvious, glaringly so. The catastrophic injuries sustained by Mr Finch caused his death. I also note that Mr Nedic and Mr Todd were also exposed to the risk.
The plea of guilty by Anthony Hanna represents an acknowledgment of his failures to take reasonable care that his acts or omissions while at the site did not adversely affect the health and safety of other persons, in particular Mr Finch, Mr Todd and Mr Nedic. The admitted admissions are contained in paragraph 17(a)-(e) of the Amended Summons. The pleaded measures admitted by Anthony Hanna to be reasonable steps which he ought to have taken, but failed to do so, gave rise to the exposure of the workers to the risk to their health and safety.
The plea of guilty by Milia Hanna represents an acknowledgement of her failure as a primary duty holder to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Finch, Mr Todd and Mr Nedic, while they were at work in her business or undertaking. The admitted admissions that Milia Hanna failed to ensure are contained in paragraph 18(a)-(e) of the Amended Summons. The pleaded measures are admitted by Milia Hanna to be reasonably practicable measures that she ought to have taken, but failed to do so, that gave rise to the exposure of the workers to the risk to their health and safety.
The facts as set out in the ASOF and the documents contained in the Tender Bundle (Exhibit A) establish each of the particulars.
The design of the building included a void area over the entrance to the dwelling, and went from the ground floor up to the ceiling of the second storey. The risk of workers falling whilst they were working on the second storey in the vicinity of the entrance void area, was one that was known and identified, on the date of the offence by Milia Hanna.
Milia Hanna knew or ought to have known about the risks as a result of her:
1. Lodging the Complying Development Certificate Application to construct a two-storey residential dwelling;
2. Gaining accreditation in the course 'Prepare to Work Safely in the Construction Industry';
3. Completing the Owner-Builder's course which involved the completion of five units of competency which formed part of the CPC08 Certificate 1 in Construction;
4. Obtaining an Owner-Builder Permit under the Home Building Act, 1989 (NSW);
5. Obtaining approval from Liverpool City Council for the construction works at the Site; and
6. Engaging a series of contractors to undertake various aspects of the construction work relating to the two-storey residential dwelling;
The Owner-Builder Permit included Milia Hanna having responsibilities for overseeing and supervising all tradespeople, and managing the building site. Milia Hanna had inspected the site regularly between August and November 2018. During those inspections, Milia Hanna was, or ought to have been aware, that adequate edge protection was not installed, and that created a risk of workers falling from heights whilst accessing or working on the site.
Had Milia Hanna attended the site on 17 November 2018 prior to Mr Finch, Mr Todd and Mr Nedic attending, she would have observed that the means of access to the second storey was precarious as the staircase did not have handrails installed, and thus risks of falling from heights was obvious. The existence of these hazards and risks could be observed from the ground level of the building.
Anthony Hanna was appointed by Milia Hanna as her agent and/or representative with regards to the construction works at the site. He was responsible for the selection, engagement, liaising with, and instruction of contractors at the site. He undertook the role of project manager and would generally attend the site on a daily basis.
About mid-November 2018, Anthony Hanna attended the site to meet with All General to discuss the installation of air conditioning and confirm access to the site.
Had Anthony Hanna undertaken an adequate inspection before the commencement of the work by All General, he would have become aware that there was no adequate edge protection, and a partially constructed stair case, both of which gave rise to a risk to workers falling from heights whilst accessing the second storey of the dwelling. He ought to have been aware that the lack of edge protection in the area of the entrance void posed a risk to persons falling off the edge whilst working on the site.
There were multiple simple and straightforward control measures that could have been implemented by Milia Hanna and Anthony Hanna to eliminate or minimise the risk to safety, and this is relevant to assessing the seriousness of the offence. The installation of adequate edge protection, such as treads, handrails or guard railing, on the partially completed internal staircase was a simple and available measure that should have been taken to eliminate or minimise the risk. These were simple, inexpensive measures that could have been easily undertaken, and none were.
Milia and/or Anthony Hanna had the authority to prohibit workers from accessing the second storey until adequate edge protection was in place. They did not do so, nor did anyone warn the workers on the site of the danger of falling from heights, and in particular in the entrance void area.
The gravity of the potential risk to workers was high, as were the serious consequences if someone fell 3.3m to the floor as demonstrated by the tragic fatal injuries suffered by Mr Finch. The probability that such a consequence would follow was also high, and the risk of workers suffering fatal or serious injuries was a real and substantial one, and was not remote.
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 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 Act is considered in the context of the graduation of offences contained in ss 31-32 of the 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 [53];
Whether those steps are complex, burdensome or mildly inconvenient if mitigating steps could easily have been taken, the offending will be more serious: Ibid [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).
Whilst s 32 of the Act does not require an injury to have occurred, but simply the creation of a risk, the fatal injuries sustained by Mr Finch means I am satisfied beyond a reasonable doubt, that the harm was not greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).
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 Amended Summons, I am of the view that these offences objectively fall within the middle range of seriousness.
[10]
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 to ensure 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).
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.'
General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in an industry that requires workers to work at height.
I am concerned as this prosecution was of an Owner-Builder, the message needs to be sent to those persons undertaking such operations, that they are not excused from honouring their WHS obligations, and that such obligations cannot be delegated to another person. Here, Milia Hanna's obligations cannot be delegated to Anthony Hanna in his role as the supervisor/co-ordinator of trades/project manager.
The duty is one of strict liability, consequently, there is no mental element to the offence: s 12A of the Act. The failure by Milia Hanna to regularly undertake site inspections, or walk throughs, meant that such a measure was inconsistently implemented and falls very short of the requirements under the legislation.
A submission was advanced by the defendants that as this was an owner-builder project, that in itself goes someway to explain the informality with which safety was implemented. It may well explain, but in no means does it excuse the defendants from their obligations to ensure the safety of workers at their site. There is little evidence before me to demonstrate that the defendants had any real regard to their obligations or for the safety of the workers on the site.
It would have been a simple measure for Anthony Hanna to attend the site prior to the arrival of contractors and to speak to them and provide a warning about the hazards and risks of falling associated with the internal metal staircase and the existence of the open edges/voids on the second storey of the dwelling. It would equally have been a simple step to prevent the workers from working on the site until the appropriate steps and methods were implemented to prevent them from falling.
Unfortunately, whilst judgments of this Court have regularly addressed the ever increasing number of people being injured or losing their lives when falling from height in the course of their employment, the message does not seem to be getting through to the construction industry. In my view, there also needs to be a very clear message to Owner-Builders that the obligations of the Act also apply to them, as does the duty to protect workers from the risk of harm at the workplace.
The requirement to comply with the expectation of the community, that both large and small employers, including Owner-Builders, will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously.
There was guidance material readily available to the defendants. This risk was known to the construction industry generally.
General deterrence is necessary to heighten and focus the attention of companies, and Owner-Builders engaged in the construction industry as having the potential for serious injury or death of workers tasked with construction at height with little to no safety measures in place.
Owner-Builder projects and the manner in which the works are undertaken must not permit a degree of informality in terms of safety, as this can lead to very significant problems. There were two easy and inexpensive steps that should have been taken, the first being engineering control as discussed above. Additionally, there was no restriction of access to the site, because when Anthony Hanna was aware that contractors were coming onto the site, he provided them with a code to allow entrance on the site, and as such ignored a behavioural control that was available to him.
In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve the safety of their worksites following a breach of a duty are relevant, as is the propensity for the defendants to reoffend. I note that Milia Hanna does not intend to undertake any further owner-builder work. However, it seems that Anthony Hanna remains in the construction industry and continues to perform similar work as he did when the incident occurred.
I accept that the steps taken by the defendants since the incident have attempted to address their failures as detailed above, and that such steps are indicative of a commitment to rehabilitation by Anthony Hanna. The defendants have consented to a work health and safety order pursuant to s 238 of the Act.
I accept that the prospects of rehabilitation of Anthony Hanna are reasonable, but the need for an element of specific deterrence is still necessary in these circumstances.
[11]
AGGRAVATING FACTORS
An offence under s 32 of the WHS Act does not require an injury to be made out, only the creation of the risk. The fatal injuries sustained by Mr Finch were clearly of the most serious kind. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial and that the aggravating factor in s 21A(2)(g) of the Sentencing Act is established.
Mrs Katelyn Finch prepared a Victim Impact Statement which became Exhibit B in the proceedings. Mrs Finch read the statement to the Court. It would be absolutely impossible for someone not to be deeply moved by her statement, as I was.
Mr Finch was a loved and loving husband, son, brother and father to Wyatt. His death has devastated his family and continues to cause unending grief and suffering.
Wyatt celebrated his first birthday without his devoted and adoring father. Mrs Finch has lost her 'happily ever after' and her best friend. Her grief is enormous and raw, and she feels that she and Wyatt have been given a life sentence.
Mr Finch's parents and siblings were also in Court, and their loss is heartbreaking in the extreme. Other friends and family members observed the proceedings via the AVL facility in the Court.
It is clear that Mr Finch was a wonderful man, in the prime of his life, loved and loving to so many, particularly his young family, and he has been cruelly ripped away from them all. I express my deepest condolences to Mr Finch's family and friends, and my thanks to Mrs Finch for having bravery to come to Court and speak of the enormous hole that has been left in her life by her husband's passing.
[12]
MITIGATING FACTORS
The defendants co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
The defendants have no previous convictions: s 21A(2)(d) of the Sentencing Act.
The defendants entered a plea of guilty on 2 August 2021, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.
Milia Hanna does not intend to continue as an owner-builder, and Anthony Hanna has made some changes to the safe systems of work since the incident, and I accept that he 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 defendants. The defendants tendered an apology dated 2 November 2021, and references which became Exhibit E. I accept that the defendants have shown some remorse and contrition and as such are entitled to some leniency on that basis.
The defendants entered pleas of guilty early, and the prosecutor submits it is open to me to find that the defendants are entitled to the maximum discount on that basis, thus 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.
[13]
CAPACITY TO PAY
Section 6 of the Fines Act 1996 (NSW) provides as follows:
'6 CONSIDERATION OF ACCUSED'S MEANS TO PAY
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.'
The onus is on the offender to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of any penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]:
'The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:
'[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50):
'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.'
[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82):
'... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).'
However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed:
'... 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. ...'
[85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476:
'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.''
The defendants make an application under s 6 the Fines Act, on the basis of an alleged incapacity to pay a significant fine.
The defendants each tendered an affidavit sworn 26 October 2021 (Exhibits C and D) detailing the issues they have with regard to their respective capacities to pay a fine. Anthony Hanna swore a further affidavit dated 9 November 2021 (Exhibit F).
The Prosecutor tendered an expert accountant's report from Vincent's dated 9 November 2021. The defendants had not had the opportunity to respond to the report, but did not want to delay the final resolution of the proceedings, and very fairly consented to the report going into evidence.
The bank statements attached to Exhibits C and D evidence various loans between family members of Anthony Hanna and Milia Hanna, including withdrawals and loans to Martin Betto, Sana Mako, Ricky Hanna, Dylan Hanna and Merwan Betto. There are also withdrawals of almost $80,000.00 and deposits totalling $34,000.00 which appear to be, and I accept, is crypto currency. There are also credit card statements.
On page 6 of the Vincent's report is a calculation based on the information in Exhibits C and D of the reported income and expenses of the defendants. It shows a shortfall of income of $2,466.37 per month. There is no explanation how these expenses are being met, or where the money to cover the expenses is coming from.
On page 8 of the Vincent's report is a table of assets and liabilities prepared by the expert based on the material contained in the affidavits of the defendants. The net assets before adjustments are $1,190,938.00. The expert then calculates the adjustments of the Childcare Developments Construction Costs and the Hanna Trust Constructions Costs, which reveal the Revised Hanna Net Assets are $9,850,543.00 (page 11 Table 3). I accept that not all of these are assets that may be readily realised.
Anthony Hanna gave sworn evidence which was not challenged. He described how the entities utilise second tier lenders, and have loans through commercial lenders. He indicated that he had received Job Keeper and additional government support payments on account of Covid-19, as he was entitled to do. Anthony Hanna further detailed that he had to borrow significant monies from his family, his in-laws and his children to make ends meet.
Anthony Hanna gave further evidence that the accounting practice in the building and construction industry was such that the costs of construction were factored in which allows for assets and liabilities to be reflected. I accept Anthony Hanna's evidence on that point.
The task that I am required to do then is essentially synthesise the material contained within the Vincent's report, the defendants' affidavits and the sworn evidence given by Anthony Hanna who was not cross-examined. Doing the best that I can, I can see that the defendants have a complex system of businesses, trusts and loans, and that there may be some difficulty in paying fines. However, I am also satisfied that the defendants have the capacity to borrow significant amounts of money.
After final adjustments, the expert opines that on the basis of the material he has received, the net assets are approximately $3,840,474.00 (table 5 page 18). I have also had regard to the 'missing information' reference in the experts report. In conclusion, I am not satisfied beyond a reasonable doubt that the defendants either personally, through their trust and corporate entities, cannot afford to pay a significant fine, or do not have the capacity to borrow funds to pay a fine.
Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that Anthony Hanna 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, including owner-builders, 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 Mr Finch was exposed to, which caused his tragic death.
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 defendants, 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 Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. I have also taken into account that the defendant will be liable for the prosecutor's costs as part of the overall penalty imposed.
On the bases outlined above, I will afford the defendants some leniency based on their capacity to pay a significant fine, and the costs orders which they also face, and their own legal costs.
[14]
ADDITIONAL ORDERS
The prosecutor seeks that the Court make orders under Division 2 of Part 13 of the WHS Act in respect of the defendants.
Section 235(2) of the WHS Act provides that orders may be made under Division 2 of Part 13 in addition to any penalty that may be imposed in relation to the offence.
The prosecutor seeks that a WHS Project order be made pursuant to s 238 of the WHS Act, and the defendants have consented thereto. The WHS Project orders proposed require that Anthony Hanna and Milia Hanna fund the development and production of a de-identified educative animated video by a suitable external provider. The educative animated video is to be designed to provide guidance to the industry.
I accept that such an order is appropriate and I will make the order in the following terms:
WHS Project Order - Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):
1. Within six months of the date of these Orders, the defendants are to fund (to a limit of $20,000) a de-identified educative animated video ('the project') that addresses:
1. The incident in which William Finch was exposed to a risk of death or serious injury on 17 November 2018 ('the material date');
2. The risks to which he was exposed on the material date;
3. The content, nature and operation of a suitable safe system of work that would have reduced the risk to which William Finch was exposed on the material date as far as is reasonably practicable;
4. Other guidance material applicable to safe work in, on or around fall from heights as deemed appropriate by SafeWork NSW; and
5. Other guidance material applicable to the management of risks associated with Owner Builders.
1. The management of the video project with be undertaken by SafeWork NSW;
2. The defendants are to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the animation provider;
3. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;
4. The video is the bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales;
5. The defendant is to notify the prosecutor and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service; and
6. Liberty to restore the matter before the Court if the parties wish to vary this order or the defendant does not comply with this order.
The appropriate fine for the Milia Hanna is $200,000.00. The defendant is entitled to a discount of 25% for the early plea.
The appropriate fine for Anthony Hanna is $100,000.00. The defendant is entitled to a 25% discount for the early plea.
The defendants are to pay the prosecutors costs agreed in the sum of $65,000.
[15]
PENALTY
I make the following orders:
1. The defendant Milia Hanna is convicted.
2. The appropriate fine is $200,000.00 and that is to be reduced by 25% to reflect the early plea.
3. Accordingly, the defendant, Milia Hanna, is fined $150,000.00.
4. The defendant Anthony Hanna is convicted.
5. The appropriate fine is $100,000.00 and that is to be reduced by 25% to reflect the early plea.
6. Accordingly, the defendant, Anthony Hanna, is fined $75,000.00.
7. The defendants are to pay the prosecutor's costs agreed in the sum of $65,000.00.
8. I order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fines are to be paid to the prosecutor.
9. I make an order under s 238 of the Work Health and Safety Act 2011 (NSW) as referred to in paragraph 128 of my Judgment.
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Decision last updated: 21 December 2021