SafeWork NSW v Apex Building Systems Pty Ltd

District Court of NSW|2023-01-31

Solicitors: Department of Customer Service (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): 2021/234784

The Risk

The risk described in par 14 of the Amended Summons is as follows: "14. The risk was a risk to individuals, in particular Messrs Thiruchelvamaran and/or Arumugam, of death or serious injury as a result of a fall from height whilst undertaking demolition work, including work relating to the dismantling and/or the removal of structural steel components from the existing premises undergoing demolition, at the site."

Reasonably Practicable Measures

Paragraph 15 of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "15. The defendant failed to ensure so far as was reasonably practicable, the health and safety of its workers, in particular Messrs Thiruchelvamaran and Arumugam, in that it failed to take any one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or, in the alternative, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers: (a) Verifying that a proper risk assessment, was undertaken by Greater Civil before work on the demolition of the existing premises on the site commenced. Such a risk assessment would have identified the risk and the measures for eliminating the risk, or, in the alternative, if it was not reasonably practicable to eliminate the risk, the measures for minimising the risk such as: (i) requiring the dismantling and removal of any parts of the existing premises at height be performed in part, or in whole, from a solid construction; and/or (ii) requiring workers dismantling and/or removing parts of the existing premises at height to use: A. fall prevention device, including, but not limited to, an elevated work platform, a scissor lift and/or a purpose-built man-box; and/or B. a work positioning system; and/or C. a fall arrest system; (iii) providing and maintaining a detailed, sequential, safe work procedure or work method which set out, step by step, the sequential method to be followed by the demolition workers in the manual dismantling and/or removal of structural steel components of the existing premises, including: the safe means of access to and egress from places of work located at height; and/or the mode of fall prevention and/or protection that the workers were to use whilst working at height. (b) Requiring the demolition contractor, Greater Civil, to provide the defendant (prior to the commencement of work at the site) with a safe work procedure or work method which set out, step by step, the sequential work method to be followed by the demolition workers in the manual dismantling and removal of parts of the existing premises including, relevantly, any one and/or more of the following reasonably practicable steps: (i) identifying the safe means of access to and egress from places of work located at height; and/or (ii) issuing a direction that the manual dismantling of and or removal of parts of the existing premises at height was to be performed from a solid construction; and/or (iii) where it was not reasonably practicable for the work to be performed from a solid construction, issuing a direction that the manual dismantling and/or removal of the existing premises at height be performed from a fall prevention device, such as an elevated work platform and/or a scissor lift and/or a purpose-built man box; and/or (iv) where it was not reasonably practicable for the work to be performed from a solid construction and/or to use a fall prevention device, issuing a direction that workers performing the manual dismantling and/or removal of the existing premises at height were to use properly fitted fall protection; and/or (c) Providing and maintaining appropriate levels of supervision of the defendant's subcontractors, including workers engaged by the defendant's subcontractors, and/or caused to be engaged by the defendant's subcontractors in demolition works performed on the site."

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.

Relevant Parties

Apex carried on a business or undertaking as a construction company. Apex was the principal contractor for the construction works known as the "Macquarie 4x Project" (the project) at Park Road in Vineyard (the site).
On 12 August 2019 Apex contracted Greater Civil Pty Ltd (Greater Civil) to demolish a single-storey steel-framed building (the building) and stockpile the structural columns, trusses and purlins from the building.
Greater Civil carried on a business or undertaking as a company performing building and construction works, including restricted demolition work. Mr Hamza Taleb was the sole director, company secretary and sole shareholder of Greater Civil. Greater Civil held a Restricted Demolition Licence.
Greater Civil engaged Astute, a construction company, to provide workers to undertake labouring work required for the works which Greater Civil was contracted to perform. Mr Ramzi Mohamad was the sole director, company secretary and sole shareholder of Astute.

The Workers

On 21 August 2019 the following workers were present on the site: 1. Mr Enrico Manlapid, the Apex Project Manager and site supervisor for the construction works at the site. 2. Mr Jamel Taleb, Greater Civil's site supervisor for the demolition works at the site. Mr Taleb held a demolition supervisor's certificate and a national ticket of competency in relation to the use and operation of excavators issued on 12 February 2019. 3. Mr Ramzi Mohamad, the director of Astute. Mr Mohamad provided supervision, instructions and directions to workers working on the site.
The following workers engaged by Astute as labourers were also present at the site on 21 August 2019: 1. Mr Prasanth Thiruchelvamaran. 2. Mr Kugenthiran Arumugam.

The Plant

On 21 August 2019 Greater Civil provided for use at the site a Caterpillar 3190 excavator (the excavator).
The excavator was fitted with a "quick hitch" fitting that enabled the operator to change the tools attached to the excavator arm, including the attachment of an excavator bucket. The excavator was also fitted with a quick hitch warning buzzer, which was designed to sound an audible warning to the operator of the excavator when the quick hitch is unlocked. As at 21 August 2019 the quick hitch warning buzzer was non-operational.
The excavator bucket attachment was not designed to transport or lift workers to work at height or as a working platform for work at height.

The Incident

On 21 August 2019 at approximately 3.30pm Mr Manlapid left the site.
Mr Jamal Taleb attached the excavator bucket in an upside-down position to the arm of the excavator.
That afternoon, in the presence of Mr Mohamad, Mr Jamal Taleb operated the excavator with the bucket in this upside-down position: 1. To lift workers to a position at height to work on dismantling and removing the roof and frame of the building. 2. To use as a working platform from which workers carried out this work. 3. As a means of providing access to and egress from working positions located at height on the building where workers carried out this work.
In the afternoon on 21 August 2019, Mr Jamal Taleb and/or Mr Mohamad instructed Mr Thiruchelvamaran and Mr Arumugam to get into the excavator bucket which had been attached upside down to the excavator arm, for the purpose of being carried aloft in the bucket.
Mr Thiruchelvamaran and Mr Arumugam were then lifted in the bucket to a height of approximately four metres.
No worker was provided with fall protection while this was taking place.
The excavator bucket detached from the "quick hitch" attachment on the arm of the excavator and fell onto the concrete slab below. Mr Arumugam and Mr Thiruchelvamaran also fell onto the concrete slab.

Injuries

Mr Arumugam sustained the following injuries: 1. A fracture to the right anterior mandible. 2. Posterior fractures of the left fourth, fifth and sixth ribs. 3. A fracture through the neck of the left scapula. 4. A fracture of the left humerus requiring open reduction and internal fixation.
Mr Arumugam required immediate treatment as an inpatient in a hospital.

Apex

Apex had a Work, Health, Safety and Rehabilitation Policy and a formal, documented Work, Health and Safety Plan for the site (the WHS Site Plan). Mr Manlapid was responsible for the administration and implementation of the WHS Site Plan.
Apex was required to conduct and document hazard identification and risk assessment for all works to be conducted on the site before any such works commenced. This was not carried out with respect to the demolition works.
Apex was to review and evaluate each Safe Work Method Statement (SWMS) submitted to Apex by subcontractors to ensure all SWMSs were site-specific prior to work commencing. This process included identifying the job steps involved in the work, the potential hazards associated with each job step, the risk class of each hazard and the controls to be used to eliminate or minimise the risk. This was not carried out with respect to the demolition works.
Apex had a formal, documented site safety induction system to be performed for each worker before the worker commenced work at the site. As part of the induction process, Apex was to ensure that each worker had read, understood and signed a relevant SWMS to acknowledge that the worker agreed to abide by the SWMS, including the adoption and maintenance of relevant risk controls.
Mr Manlapid conducted a site induction for Mr Thiruchlvamran on 20 August 2019 and for Mr Arumugam on 21 August 2019. The Apex Induction Record forms were signed by the respective workers and countersigned by Mr Manlapid. However, Mr Manlapid did not obtain signed copies of Greater Civil's SWMS from these workers.
When Mr Manlapid left the site at about 3.30pm on 21 August 2019, demolition works were continuing on the site without any supervision by Apex.

Greater Civil

On or about 16 August 2019 Mr Hamza Taleb prepared a Demolition Work Plan and two SWMSs for the works to be performed at the site by Greater Civil.
The Demolition Work Plan noted that the existing concrete slab was to be retained and the building's beams and purlins were to be stockpiled on site.
The Demolition Work Plan and the two SWMS did not provide, either in accordance with Part 4.4 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) or at all, for the following: 1. A safe means of access to and egress from places located at height at or from which the demolition works were to be performed. 2. The elimination, as far as was reasonably practicable, of the risk to workers while performing the demolitions works from height .
The two SWMSs were written in English. The workers came from non-English speaking backgrounds. Mr Arumugam was not skilled in reading or writing English.
The workers were not trained by Greater Civil in the safe performance of work at height.
Greater Civil had a documented Pre-Start Plant Daily Checklist which was to be completed by the operator of the excavator. It did not make provision for the inspection or testing of the quick hitch attachment device or warning device.
Greater Civil did not have in place a robust service, maintenance and repair programme in relation to the excavator.
In the period between 6 May 2018 and 1 September 2019, the excavator was inspected on a quarterly basis for oil leaks from the engine. The machine was greased, hydraulic fluid was checked and topped up, and the engine oil and filters were changed. The vehicle was not otherwise maintained or repaired.

Astute

Astute did not have a work health and safety plan in relation to the site or a SWMS with respect to the demolition works at the site.

The Regulation

Clause 78 stated that a person conducting a business or undertaking (PCBU) at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to that person or any other person.
Clause 79 applied where it is not possible to eliminate the risk of a fall to which cl 78 applies. Clause 79(3) provided that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: "(a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable."
Clause 79(5) defined "fall prevention device" to include a secure fence, edge protection, working platforms and covers.
Clause 291(a) defined "high risk construction work" as including construction work that "involves a risk of a person falling more than 2 metres". This triggered the application of Division 2 of Part 6.3 of the Regulation. The clauses therein required a PCBU to prepare a SWMS for the high risk construction work before it commences, and for that SWMS to be complied with and regularly reviewed by the PCBU.
Clause 292 defined a "construction project" as a project that involves construction work where the cost of the construction work is $250,000 or more. The original contract price for the work Apex was engaged to undertake was more than $500,000. This triggered the application of Part 6.4 of the Regulation which outlined additional duties of a principal contractor.
Clause 309 under Part 6.4 required that a principal contractor must prepare a written WHS Management plan for a workplace before work on the project commences.
Clause 314(i) under Part 6.4 required that a principal contractor must put in place arrangements for ensuring compliance at the workplace with Part 4.4 of the Regulation dealing with "Falls".

Codes of Practice

The SafeWork NSW Code of Practice Construction Work dated May 2018 (the Construction COP) reinforced the relevant Regulation clauses outlined above, particularly at Chapters 4 and 5 which relate to SWMS and WHS Management Plans.
Chapter 4 of the SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces dated August 2019 (the Falls COP) recommended the use of a scissor lift or work platform when work cannot be performed on the ground, if it is reasonably practicable to do so.
Chapter 5 of the Falls COP provided guidance for when work cannot be performed on the ground or from a solid construction. It required a PCBU to provide a fall prevention device, if it is reasonably practicable to do so.
The Construction COP and the Falls COP were available on the SafeWork NSW website prior to the incident.
None of the parties complied with the Regulation or followed the available material for the work undertaken at the site.

Affidavits of Mr Lucas Franks

Mr Lucas Franks affirmed an affidavit on 20 December 2022 (DX 1 and DX 2) and a second affidavit on 31 January 2023 (DX 4). He has been the sole director and General Manager of Apex since May 2017.
Mr Franks was responsible for overseeing all operations of the company, including work health and safety (WHS) and financial performance.

Background

Apex is a small family-owned construction business founded in 1988. Apex specialised in the design and construction of concrete tilt panel buildings and large span portal buildings.
Mr Franks began at Apex in 1994 as a draftsperson. He has 28 years experience in the construction industry. He holds an Associate Diploma in Structural Engineering and has completed an apprenticeship as a draftsperson.
Apex employed 20 staff. Six of those staff were in site construction and project management and six were in steel fabrication. Most were long-term employees. Some had been employed by the business for over 20 years.
On average Apex had four to five construction projects each year, lasting on average of eight to nine months. The average value of each construction project was $5 million.
Apex employed three site supervisors to manage the projects on a day-to-day basis.

Apex's Safety Record

Mr Franks noted that in 34 years of operation, there have been no notifiable incidents at any of Apex's work sites.

The Site

On 11 December 2018 Mr Franks executed on behalf of Apex a Design and Construct Contract (the contract) for the demolition of a pre-existing structure and the construction of a new structure on the site.
Apex did not typically engage in contracts involving demolition works. Most of Apex's work is undertaken on vacant sites or undeveloped land. On the limited occasions that a project involved a demolition stage, Apex went to market to obtain quotes from demolition contractors.
Apex did not have ongoing, long-term relationships with demolition contractors as it did with other trades. Apex did not have a pre-existing relationship with Greater Civil and has not used Greater Civil since the incident.
Mr Eric Manlapid was the site supervisor responsible for the site. Mr Manlapid obtained quotes from contractors and engaged them. Mr Franks had final approval for the engagement of contractors.
Mr Franks had known Mr Manlapid since Mr Manlapid began working for Apex in 2004. He considered Mr Manlapid to be a very experienced and reliable site supervisor.

Improvements to Systems Following to the Incident

Following the incident Apex recognised the need to make improvements to its paper-based WHS system to enhance compliance and ensure all workers held appropriate licences and insurances.
In January 2022 Apex implemented an online site and workplace safety system (online WHS system) developed by Global Safety Systems.
As part of the online WHS system all workers (including contractors and subcontractors) and visitors are required to register with the system and pre-qualify via an online course before entering the site and commencing work. It requires workers to answer questions specific to Apex's site and activities.
Apex's site supervisors have access to the online WHS system and can log in at any time to check workers' licences, qualifications and relevant insurances.
A benefit of the online WHS system is it may also highlight individuals from culturally and linguistically diverse backgrounds who have difficulty comprehending English, so Apex can then ensure the worker is appropriately supported in completing and understanding the pre-qualification online induction.
Before being permitted on the site and commencing work, contractors are required to provide Apex with their SWMSs. The SWMSs are reviewed and approved by Apex's site supervisor and uploaded to the online WHS system. The supervisor then completes a SWMS checklist which is also uploaded.
The online WHS system cost Apex an initial $9,542 as well as requiring additional ongoing fees for the subscription to maintain the system. Considerable time and cost have been spent internally implementing the system and training workers.

Corporate Citizenship

At the time of the incident Apex employed two apprentices who were training to be welders and steel fabricators. Apex also had at various times over the years sponsored local junior soccer teams and basketball teams.

Prior History

Apex did not have any prior convictions for any offence in any jurisdiction.

Cooperation with SafeWork NSW

Apex had at all times cooperated with SafeWork NSW during its initial investigation of the incident.

Contrition and Remorse

On behalf of Apex, Mr Franks acknowledged and accepted responsibility for the breach by the company of its duty under s 19(1) of the Act. He acknowledged that there was more Apex should have done to address the fall from height risk associated with demolition works.
Mr Franks stated that on a personal level he was very shaken by the incident and the injuries sustained by Mr Arumugam. He did not know the full extent and severity of the injuries and the circumstances in which he was taken to hospital until these court proceedings. He stated that he deeply regrets that the incident occurred and feels responsible for Apex's contribution to the incident.

Impact of Recent Events on Apex

Since the incident Apex has experienced ongoing delays caused by COVID-19 as well as extreme wet weather events which have caused an ongoing adverse impact on Apex since November 2021. This has lengthened project times, resulted in unexpected costs and also impacted Apex's ability to tender for new projects. Apex does expect to experience the full impact of these delays on its operations for a couple of years.

Affidavit of Mr Enrico Manlapid

Mr Enrico Manlapid swore an affidavit on 22 December 2022 (DX 3). He is a site supervisor for Apex. He has had this role since 2004 when he commenced employment at Apex.

Background

Mr Manlapid has over 20 years of experience in construction, a General Construction Induction Training Card issued on 5 August 2006 and a First Aid Certificate. He has also completed a Working Safely at Heights course on 1 March 2019.
Prior to Apex, Mr Manlapid worked as a site supervisor/manager in the construction industry in the Philippines for various companies and as a forklift driver at Cello Paper in Moorebank.
Mr Manlapid's responsibilities as the site supervisor included: 1. Overseeing site operations. 2. Managing and supervising subcontractors, including inducting all new workers and undertaking regular site walks. 3. Ensuring that correct and safe work practices are being followed by the workers on site. 4. Reporting to the director/General Manager.
Prior to the incident there were no notifiable incidents that occurred during Mr Manlapid's time as site supervisor.
Mr Manlapid inducted all workers to the site before they commenced work. The induction's purpose was, inter alia, to outline and discuss WHS issues and ensure all trades were familiar with, and complied with, WHS policies and procedures. Workers signed and dated Apex's Induction Record following completion of the induction.
Mr Manlapid conducted regular informal daily toolbox meetings with all trades on site. These meetings provided an opportunity to discuss the works that would be undertaken that day and any issues, hazards, or risks of concern.
Mr Manlapid also conducted regular site walks throughout the day to ensure all workers were complying with the site safety rules and performing the works in a safe manner. On these walks Mr Manlapid identified whether there were any issues that required fixing. He would stop the work immediately if he saw a worker failing to comply with Apex's site safety rules. Issues spotted within his control were fixed straight away or otherwise escalated.
On or about 19 August 2019 Mr Manlapid observed Greater Civil deliver the excavator to the site. Mr Manlapid met and had a toolbox talk with Mr Jamal Taleb, the site supervisor for Greater Civil, to discuss the demolition works scheduled to commence the next day, including how they were to be undertaken and the relevant time frames.
Included in the work undertaken by Greater Civil on 20 and 21 August 2019 was removing the roof sheets and wall cladding by hand. This required working at height. Mr Manlapid observed this work being undertaken using ladders with the workers wearing harnesses to ensure their safety. Work was undertaken from the ground level as far as possible. There was no need for the workers to use a scissor lift or access a hire machine until the workers were required to remove the purlins.
Mr Manlapid was unaware that the excavator bucket had been used to lift workers to work at height on the site until he was informed by Inspector Holder on 10 September 2019.

The Incident

On 21 August 2019 Mr Manlapid arrived on the site at about 6.30am.
Mr Manlapid had an informal toolbox talk with Mr Taleb about the work that would be done that day and how it would be done. Mr Manlapid recalled asking Mr Taleb to remind his workers to use the safety harnesses when working at height. The informal nature of these toolbox talks meant they were not documented.
Based on this conversation Mr Manlapid understood that Greater Civil would perform ground works all day and the works at height would be undertaken the following day. He also understood that no work involving the use of an access hire machine would be done that day. If work was to be undertaken at height, it would be the work that could be done using a ladder and harnesses.
Around midday on 21 August 2019, Mr Manlapid had another conversation with Mr Taleb about an access hire machine being needed, so that work could be undertaken safely at height and to ensure the purlins would not be damaged during the demolition process.
On 21 August 2019 Mr Manlapid remained on site most of the day. It was common practice that he would spend the majority of the day on site.
During the day Mr Manlapid conducted various site work, and also undertook some work in the site office, which had a window allowing him to monitor the work on the site. He conducted a minimum of three site walks per day.
At all times Mr Manlapid could see and hear the work being undertaken by Greater Civil on the site.
The only time that Mr Manlapid observed Greater Civil's excavator being used was when it was used to demolish the small brick wall on site and to help separate the bricks from the steel and roofing materials on the ground. This work occurred for an hour or two. At no stage did Mr Manlapid see the excavator being used to work at height.
If Mr Manlapid had seen or heard the excavator being used to lift workers up to work at height, he would have stopped the work immediately and directed Greater Civil not to use the machine for this purpose. He would have directed Greater Civil to only resume the works using an access hire machine.
Construction work on the site ordinarily finished between 2.30pm and 3.00pm each day. Mr Manlapid was normally the last person on site, ordinarily leaving after the trades had finished packing up.
Mr Manlapid left the site slightly earlier on 21 August 2019 at approximately 3.30pm because he had a work appointment to go to.
Before he left the site, Mr Manlapid saw that Greater Civil's workers were finishing up their work for the day and were in the process of packing up. No work at height was being undertaken and he believed that no further demolition work or work at height would be undertaken that afternoon.
It was Mr Manlapid's understanding when he left the site that Greater Civil's workers would be leaving soon after him. He would not have allowed them to stay on the site if he had any reason to believe they would continue to undertake demolition work that did not solely involve packing up.
After the incident, Greater Civil's workers continued with the demolition works. Mr Manlapid observed them to work at height using the scissor lift to take off all the purlins.

Consideration

I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
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. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors."
Further at [42] his Honour continued: "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 [event] 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 little, if any, costs."
At [53] his Honour 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. The risk was foreseeable, although Apex could not have been expected to foresee the particular incident which occurred. The Act focuses upon a risk being created. 2. The likelihood of the risk occurring was significant. 3. The potential consequences of the risk were death or serious injury. 4. The steps to eliminate or minimise the risk which are particularised in the Summons should have been taken by Apex before the incident. 5. There would have been little or no burden or inconvenience of implementing appropriate steps. 6. The injuries suffered by Mr Arumugan were serious, as discussed below in relation to his Victim Impact Statement. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence.
I find that the level of culpability of Apex is in the mid range.

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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
The penalty must reflect the need for specific deterrence. Apex is still conducting a business. Its operations involve the continuing engagement of workers for the construction industry.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

Apex has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Apex is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Apex has been in business for approximately 34 years.
Apex is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Apex has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
Apex has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Arumugan was caused by its actions.
Apex entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Apex a 25% discount for an early plea.
Apex gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Consistency in Sentencing

Both counsel submitted that the principle of parity did not have direct application in the present case as the offenders, Apex and Greater Civil, are not persons who were concerned in the commission of the same crime.
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Mason J said (at pp 610-611): "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
In written submissions (MFI 1) counsel for the prosecutor noted the different roles played by Greater Civil and Apex on the site. Greater Civil was a specialist demolition subcontractor and Apex was the principal contractor for the construction project. Counsel for the prosecutor submitted that it was the role of Apex through its site supervisor to receive and review the adequacy of the SWMSs submitted to it by Greater Civil, to induct the workers in relation to those SWMSs, and to provide site supervision with a view to ensuring compliance with those SWMSs. Counsel for the prosecutor submitted that the defendant should not have permitted demolition work to commence in the first place. Counsel also acknowledged that the Apex site supervisor was not directly involved in the incident and played no part in the provision of the directions which resulted in the workers entering into the bucket of the excavator and then being raised to work at height.
The written submissions by counsel for the defendant (MFI 2) pointed out that Apex and Greater Civil had not been charged as co-offenders. While Apex and Greater Civil were charged under the same section of the Act, the conduct of each offender disclosed no relevant degree of common planning, cooperation or common purpose. I accept that submission.
Counsel for the defendant submitted that the conduct of Apex disclosed a significantly lower level of culpability than that of Greater Civil. I accept that submission. Counsel pointed out that Judge Strathdee in sentencing Greater Civil (SafeWork NSW v Greater Civil Pty Limited [2022] NSWDC 486) made the following findings : 1. Greater Civil directed the two workers to enter the upturned bucket for the purpose of working at height and Greater Civil's site supervisor operated the excavator for that purpose. 2. As a matter of common sense, the risk of serious injury or death is exacerbated where workers were directed to get into the upturned bucket of the excavator for the purpose of performing demolition work at height. 3. The excavator and its bucket were neither designed nor suitable for suitable for use as a temporary work platform. 4. Once in the bucket, neither worker was provided with fall protection such as a harness. 5. The excavator was defective as the quick hitch warning button was inoperable and the device was missing a mounting bolt. 6. Given the use of the upturned excavator bucket as a work platform, the likelihood of the risk coming home was extremely high, if not almost inevitable. 7. Greater Civil's actions involved a serious dereliction from its health and safety duty and demonstrated a level of disregard for proper safe work procedures, which significantly increased Greater Civil's culpability.
Counsel for the defendant drew attention to the decision of the Court of Criminal Appeal in Van Can Ha v R [2008] NSWCCA 141 where the court said at [26]: "However, the principles of parity do not apply except between persons who are charged as co-offenders. The application of those principles is sufficiently complicated even in that situation to make it impractical to extend them to consider the situation of persons who are not strictly co-offenders. Of course, sentences on such persons may be relevant in the same way that sentences on all persons convicted of the same or sufficiently similar offences are but that is the limit of the relevance of the sentence imposed on Nguyen."
Having regard to the principles set out above, upon which there was agreement between counsel for the parties, I make the following findings: 1. The objective seriousness of the offence committed by Greater Civil is greater than that of Apex by several orders of magnitude. 2. Apex breached its work health and safety duties by failing to make a risk assessment and failing to properly assess the worth of the SWMSs put forward by Greater Civil. 3. Greater Civil actually carried out the extremely dangerous and quite stupid act of raising workers up to a height in the upturned bucket of an excavator. 4. While that was a deliberate act on the part of Greater Civil, the site supervisor of Apex had no knowledge that the work from height was to be conducted in that fashion and could not have foreseen that such an egregious breach of the Act would be committed by Greater Civil.
I note the sentence imposed by Judge Strathdee upon Greater Civil. While there are some common elements in the two offences, they are not co-offenders and the degree of objective seriousness of the Greater Civil offence is vastly greater than that of the Apex offence.

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

The defendant was convicted at the sentence hearing on 31 January 2023.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence: 1. Any personal harm. 2. Any emotional suffering or distress. 3. Any harm to relationships with other persons. 4. Any economic loss or harm that arises from any matter referred to in (1) - (3) above.
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B.
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
This Victim Impact Statement was also tendered before Judge Strathdee at the sentence hearing in relation to Greater Civil. I respectfully adopt her Honour's summary of the Victim Impact Statement of Mr Arumugan in SafeWork NSW v Greater Civil Pty Limited at [78]-[84] as follows: "[78] The prosecutor tendered a Victim Impact Statement ('VIS') from Mr Arumugam which was a lengthy handwritten statement in Tamil that was translated by a qualified NAATI Interpreter into English (Exhibit B). The details of the VIS were heartbreaking. [79] Mr Arumugam came to Australia from his native Sri Lanka on a boat seeking refugee status in 2012. He was held in detention for about 100 days and was then released and assisted to find a job and speak English. [80] In 2014 Mr Arumugam found employment in Wagga Wagga as a cleaner and sent money home to support his family. He was very happy in Wagga Wagga. His refugee status claim was then rejected and he had to move to Sydney for further interviews as to his refugee status, and found work with Astute where he worked for about two years until the date of the accident. [81] His injuries are partly indicated above, but from the VIS it seems that Mr Arumugam also suffered a fractured jaw which did not allow him to eat solid food or brush his teeth. He existed on a liquid diet for three months. For months he had to regularly attend hand physiotherapy, neurology clinics, dental clinics and his GP a couple of times a week. He underwent further surgery and, as a consequence, Mr Arumugam suffered significantly as a result of his injuries sustained in this accident. [82] Mr Arumugam was also unable to work and lived off the charity of his friends and workers compensation benefits, both of which ultimately wore out. He had no money and was unable to support himself let alone send money home to support his family. He ultimately returned home to Sri Lanka on 24 February 2022. [83] Mr Arumugam continues to suffer on a daily basis, with very limited use of his left hand, where he also suffers significant pain. He experiences headaches and numbness in his head and has difficulty biting certain foods. On page 17 of Exhibit B he states as follows: 'This is how difficult my life has been in Sri Lanka. My boss from Australia, Ramzi, has never contacted me to see how I am doing from the date of the accident (21/08/2019) to now. This was very disheartening for me. This is the difference between my life before the accident and my life after the accident. Australia is a country that I really like and is also the country that I loved the most. I would like to come back to Australia. I can't work there due to the condition that my hand is in at the moment. Therefore, after I strengthen my left-hand, I will definitely come to Australia if I get the opportunity to do so.' [84] Mr Arumugam has suffered greatly as a result of this incident and continues to do so with little hope in sight."

Costs

The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

Penalty

My orders are: 1. Apex Building Systems Pty Ltd was convicted on 31 January 2023. 2. The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Apex Building Systems Pty Ltd to pay a fine of $180,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Apex Building Systems Pty Ltd to pay the prosecutor's costs.

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: 08 February 2023

Work Health and Safety Regulation 2017(NSW)

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