SafeWork NSW v Built by EPS Pty Ltd

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2017

Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Jahandideh v R [2014] NSWCCA 178
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412

Texts Cited: Managing the Risks of Falls in Housing Construction, August 2019
SafeWork Australia Fact Sheet Slips and Trips at the Workplace
SafeWork NSW The Pocket Guide to Construction Safety, August 2019
SafeWork NSW Code of Practice Construction Work, August 2019
SafeWork NSW Code of Practice Formwork, March 2021
SafeWork NSW Information Sheet Workplace Induction for Construction Workplaces

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Built by EPS Pty Ltd (Offender)
Paul Wahhab (Offender)

Representation: Counsel:
C Magee (Prosecutor)
C O’Neill / P Boyle (Offenders)
Solicitors:
Department of Customer Service (Prosecutor)
Fortis Law (Offenders)

File Number(s): Built by EPS Pty Ltd
2023/451133; 2023/451173; 2023/451202 and 2023/451181
Paul Wahhab
2023/451252

Publication restriction: None

JUDGMENT

Introduction

1. Built by EPS Pty Ltd (Built by EPS) appears for sentence after pleading guilty to:

(a) an offence pursuant to clause 40(a) of the Work Health and Safety Regulation 2017 (the Regulation) in that it failed to ensure that the layout of the workplace allowed, and the workplace was maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety under normal working conditions; (b) an offence pursuant to clause 79(2) of the Regulation in that it failed to minimise the risk of a fall from one level to another by a person that was reasonably likely to cause injury to the person or any other person by failing to provide and maintain a safe system of work to provide adequate protection against the risk so far as was reasonably practicable; (c) an offence pursuant to clause 298(1)(b) of the Regulation in that it failed to ensure the workplace was secured from unauthorised access, so far as was reasonably practicable; and (d) an offence pursuant to s 32 of the Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(a) of the Act and thereby exposed Prasanth Anthony to a risk of death and serious injury.

2. The maximum penalty for:

(a) the clause 40(a) offence is a fine of 345 penalty units ($35,517)); (b) the clause 79(2) offence is a fine of 345 penalty units ($35,517); (c) the clause 298(1)(b) offence is a fine of 210 penalty units ($21,619); and (d) the s 32 offence is a fine of 17,315 penalty units ($1,782,579).

3. Paul Wahhab appears for sentence after pleading guilty to an offence pursuant to s 32 of the Act in that he failed to comply with the health and safety duty he owed pursuant to s 27(1) of the Act and thereby exposed Mr Anthony to a risk of death and serious injury. The maximum penalty for the s 32 offence pleaded against Mr Wahhab is a fine of 3,465 penalty units ($ 356,721).

Facts

4. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offenders to permit an understanding of the sentence imposed.

Background

5. At all material times, Built by EPS operated a business designing, constructing and renovating homes from its principal place of business in Croydon Park.

6. Built by EPS was engaged by Kingsway 154 Pty Ltd as the principal contractor for the construction of a residential duplex dwelling at 154 Kingsway, Woolooware (the site).

7. CNH Management Pty Ltd (CNH) was engaged by Built by EPS as a contractor to undertake formwork, steel fixing, and concreting works at the site.

8. There was no documented agreement between Built by EPS and CNH as to the work to be performed at the site.

9. Mr Wahhab was a director and officer of Built by EPS.

10. Mr Wahhab oversaw the day-to-day operations at the site as a site manager. He was responsible for direction and control of various subcontractors and work health and safety (WHS) for the works undertaken at the site.

11. Mr Wahhab was in control of the site on the date of the incident, but not physically present because the incident occurred during the Christmas shut-down period.

Relevant workers

12. Mr Anthony commenced employment with CNH as a casual labourer on 10 January 2022. Carlos Hadidi, CNH’s site manager, directed Mr Anthony to commence work at the site over the telephone.

13. Mr Hadidi was an officer of CNH who exercised operational and financial control over CNH and made decisions that affected the whole or a substantial part of its business.

14. Mr Hadidi was a licensed concreter who held a Certificate in General Concreting. He was primarily responsible for the following tasks:

(a) obtaining contracts to provide formwork, steel fixing, and concreting works; (b) inspecting sites at which CNH was engaged to provide formwork, steel fixing, and concreting works; (c) directing to undertake and complete formwork, steel fixing and concrete works; and (d) providing supervision and instruction to workers engaged by CNH to undertake and complete formwork, steel fixing, and concrete works.

15. Nancy Hadidi was the sole director of CNH. She undertook bookings, accounts, and administrative work. Ms Hadidi was also responsible for conducting safety inspections or audits for tasks being undertaken at the site as she was responsible for ensuring that each site attended by CNH workers was free of accidents and hazards.

16. Toni Bou-Francis was engaged as a leading hand by CNH. Mr Bou-Francis was competent and experienced in performing the work. He was the most senior among the workers at the site but was not a site supervisor.

17. Kovarthanan Sivanthan was a labourer and Tony Azar was a truck driver engaged by CNH.

The site

18. As at 11 January 2022, the site consisted of a partially constructed duplex with one dwelling (front duplex) being situated closer to the Kingsway than the other dwelling (rear duplex). The partially completed building was approximately 50 metres long and 15 metres wide.

Front duplex

19. The front duplex had been constructed with a ground and first-floor concrete slab. There was an excavation in the north-eastern corner of the front duplex at the ground floor level which contained a partially constructed concrete swimming pool (front duplex swimming pool).

20. The front duplex had a concrete slab at the first-floor level which extended outwards partially above the front duplex swimming pool.

21. The concrete edge of the front duplex swimming pool was approximately 400mm in width. The front duplex swimming pool was partially filled with storm water and building waste.

22. The void created by swimming pool excavation was not covered with structural plywood boards which were properly secured and marked with warning signs identifying the penetration below. There was no fencing or handrails erected around the edges of void created by the swimming pool excavation.

23. Five uncapped steel reinforcement bars protruded upwards approximately 400 - 600mm from the eastern edge of the front duplex swimming pool.

Rear duplex

24. The rear duplex had been constructed with a ground and first-floor concrete slab. A partially constructed concrete swimming pool was located at the rear of the rear duplex (rear duplex swimming pool).

25. The rear duplex swimming pool was partially filled with storm water and building waste.

26. The void created by the swimming pool excavation was not covered with structural plywood boards which were properly secured and marked with warning signs identifying the penetration below. There was no fencing or handrails erected around the edges of void created by the swimming pool excavation;

27. Four uncapped steel reinforcement bars protruded upwards approximately 400 - 600mm from the edge of the rear duplex swimming pool.

Construction work

28. The construction of the front duplex swimming pool and rear duplex swimming pool occurred in mid-2021.

29. Mr Wahhab was in charge of the work at the site when the swimming pools were constructed.

30. In or about December 2021 formwork had been erected for the first-floor concrete slab of the front duplex by CNH. The first floor slab extended out over the front duplex swimming pool. There was no edge protection installed on the first floor slab and access to the first floor was not prevented by barricading the stairs to the first floor. Some of the formwork was immediately above the front duplex swimming pool.

31. On the day of the incident, the security fencing around the site was missing panels, had gaps and was not properly secured together with tie wire.

The incident on 11 January 2022

32. In or about mid-January 2022 Mr Hadidi directed Mr Bou-Francis, Mr Sivanthan and Mr Anthony (the workers) to strip the formwork of the first-floor stab from the ground floor of the front duplex (the work).

33. Prior to directing the workers, Mr Hadidi did not conduct or delegate responsibility to any other person to conduct a site inspection and determine whether or not the site was safe for the workers to undertake the work.

34. Mr Hadidi did not make available a Safe Work Method Statement (SWMS) that addressed the site-specific risks to the workers. He also did not conduct or delegate responsibility to any other person to conduct a risk assessment on the work that was to be conducted in the vicinity of the uncovered swimming pool excavation.

35. On 10 January 2022 the workers attended the site to undertake the work. There were no other workers present at the site on that date.

36. No specific arrangements had been made by CNH with Built by EPS about the work to be performed on this date.

37. On 11 January 2022 the workers returned to the site. They were able to access the site as Built by EPS had shared the code to the combination lock with them.

38. A short time later, Mr Azar arrived at the site but did not enter.

39. At approximately 7:30am Mr Wahhab drove past the site and became aware that the CNH workers were at the site. He went onto the site and ascertained that they were from CNH and that they were there to undertake the work.

40. Mr Wahhab did not check whether all the workers, in particular Mr Anthony, had been inducted into the site and/or had signed CNH’s SWMS in relation to formwork.

41. Mr Bou-Francis provided Mr Anthony with a brief verbal description of the work. This included an instruction to be careful of falling objects.

42. Between approximately 9:30am-10:00am Mr Bou-Francis stripped the formwork supporting the concrete slab that protruded over the front duplex swimming pool. When this task was undertaken, the void created by the front duplex swimming pool was not covered.

43. Mr Bou-Francis utilised a plank of wood placed across the opening to walk from one side of the front duplex swimming pool to the other side, while he was accessing the formwork timbers above it.

44. Mr Anthony was directed to remove the formwork materials and to stack the timbers for transport.

45. The stripping of formwork created a messy and cluttered workspace in the vicinity of the front duplex swimming pool.

46. While removing the timber, Mr Anthony's foot slipped on the edge of the pool and caught on one of the reo-bars protruding from the eastern edge of the concrete.

47. Mr Anthony then fell and became impaled on an uncapped steel reinforcement bar that was protruding vertically from the edge of the front duplex swimming pool.

48. The reinforcement bar entered through Mr Anthony's left buttock. He then removed the reinforcement bar by jumping into the front duplex swimming pool void, which was partially filled with dirty rainwater.

49. Mr Anthony notified Mr Sivanathan of his injury. Mr Sivanathan then notified Mr Bou-Francis who phoned an ambulance.

50. Mr Anthony was taken to St George Hospital by ambulance where he underwent surgery for his injuries.

51. At the time of the incident, there were three other workers at the site but no one directly witnessed the incident.

Injuries

52. Mr Anthony suffered a penetrating injury extending from his left gluteal region into his left intraperitoneal pelvic cavity that included perforation of his bladder and vessel damage.

53. On 18 January 2022 Mr Anthony was discharged from St George Hospital.

Guidance materials available at the time of the incident

54. A range of guidance material was available to the offenders in relation to the control of risks at construction sites.

55. Clauses 39, 40, 78, 79, 316 and 317 of the Regulations state the requirements of a PCBU's health and safety obligation relating to managing the risks of slips, trips and falls, and provision of information, training and instruction, and general construction induction training.

56. SafeWork NSW Code of Practice “Managing the Risks of Falls in Housing Construction” commenced in August 2019 and provides specific guidance of risk management processes and controlling the risks of falls at construction sites.

57. SafeWork NSW Code of Practice “Construction Work” commenced in August 2019. It provides specific guidance to principal contractors and PCBUs relating to the preparation of a WHS management plan, SWMS for high-risk construction work and provision of general construction induction training.

58. SafeWork NSW Code of Practice “Formwork” commenced in March 2021 and provides specific guidance of risk management process and stripping and dismantling formwork.

59. SafeWork NSW “The Pocket Guide to Construction Safety” commenced in August 2019 and provides specific guidance relating to working at heights, site security, access and egress, and trenches and excavations.

60. SafeWork NSW Information Sheet “Workplace Induction for Construction Workplaces” provides guidance relating to inductions training and task specific training for construction work.

61. SafeWork Australia Fact Sheet “Slips and Trips at the Workplace” provides guidance relating to eliminating tripping hazards, including through cleaning up workplaces and removing obstructions and rubbish regularly.

Systems of work prior to the incident

Built by EPS

62. In approximately September 2021 before the work commenced at the site, Built by EPS did not have a written WHS Management Plan or Site Safety Management Plan (SMP) prepared for the work.

63. As at January 2022 Built by EPS did not have a SMP in place which addressed:

(a) arrangements for consultation, co-operation and co-ordination between Built by EPS and its subcontractors for activities required to comply with each parties’ respective WHS obligations; (b) site-specific health and safety rules, and arrangements to ensure all workers were informed of the rules; (c) arrangements for collecting, monitoring and review of SWMS; and (d) arrangements for management of the site, including site inspections and adequate housekeeping at the site.

64. Built by EPS had a site induction procedure for workers attending the site that required workers to have a General Construction Induction Card (White Card).

65. Mr Bou-Francis stated that he was not inducted when he started working at the site, but following the incident, he and other workers from CNH were inducted. Mr Sivanathan and Mr Azar also stated that they did not go through an induction when they commenced work at the site.

66. Mr Awkar stated that he was inducted and that he believed that all workers from CNH were inducted.

67. Mr Anthony did not receive any induction at all.

68. None of the induction forms provided by Built by EPS pursuant to the s 155 notice included a photocopy of a particular worker’s license, which was a requirement of the induction form.

69. Mr Anthony was unable to provide any form of identification when asked to do so by Mr Wahhab.

CNH

General induction training

70. CNH had an obligation to ensure that its workers held a White Card prior to undertaking construction work, including work involving the removal of formwork. It was prohibited from directing workers to undertake construction work if a worker had not completed general induction training.

71. Prior to commencing work with CNH, Mr Anthony had approximately six months of overseas’ experience working in construction and building small concrete bridges.

72. Mr Anthony did not hold a White Card.

73. Ms Hadidi was aware that Mr Anthony did not hold a White Card and had booked him into complete general induction training on a date after the date of the incident.

74. CNH had not informed Built by EPS that a new worker would be attending the site on the day of the incident.

SWMS

75. CNH provided Built by EPS with a SWMS dated 31 August 2021 (Formwork SWMS) prior to commencing the work at the site.

76. The Formwork SWMS did not make any reference to the particular location where the work was to be conducted. It did not address that the construction and stripping of formwork decks for the first floor of the front duplex would require the workers to work in the vicinity of the concrete structure of the front duplex swimming pool, which had reo-bars protruding vertically from its edge, notwithstanding that CNH knew that the concrete frame of the front duplex swimming pool was installed prior to CNH pouring the ground floor slabs at the site.

77. The Formwork SWMS was signed by Mr Hadidi, Mr Awkar, Mr Sivanathan and Mr Azar. However, it was not signed by Mr Bou-Francis, who was nominated as the supervisor overseeing the work on the date of the incident. Mr Bou-Francis was not aware of the existence of the Formwork SWMS.

78. The Formwork SWMS was not signed by Mr Anthony.

79. CNH did not require Built by EPS to ensure that:

(a) all reo-bars had capping or had been cut down to control the risk of injury if someone slips, trips or falls near them, nor did it prohibit the workers from commencing the task of removing the formwork until this was undertaken; and (b) the front duplex swimming pool was adequately covered or had handrails in place to limit the risk of falls at the edge, nor did it prohibit the workers from commencing the task of removing the formwork until this was undertaken.

80. Mr Wahhab reviewed the Formwork SWMS and confirmed that the workers had signed the document. As the work progressed, Mr Wahhab did not check to ensure that the work was being completed in accordance with the Formwork SWMS.

Steps taken after the incident

81. Following the incident, SafeWork NSW issued Improvement and Prohibition Notices to Built by EPS directly related to the risks that gave rise to the incident.

82. In response to the incident and the Notices issued by SafeWork NSW, Built by EPS took the following steps:

(a) repaired the perimeter fencing to ensure that the workplace was secured from unauthorised access; (b) installed barrier fencing to prevent access to the first floor of the premises; (c) engaged a licensed scaffolder to erect scaffolding to protect the edge of the first floor; and (d) engaged an external safety officer to assist with the development and implementation of WHS documents, including SMPs.

83. By 19 January 2022 Built by EPS had covered the voids over the front duplex swimming pool and the rear duplex swimming pool using plywood boards, set on joists. The covers were fixed to the concrete shell of the pools.

84. On 24 January 2022 Mr Wahhab sent an email to SafeWork NSW that attached a document titled “Integrated Management Plan – QHSE” (Integrated SMP). The document indicated that its first iteration was published on 20 January 2022.

85. The Integrated SMP included:

(a) a requirement that all employees and subcontractors complete WHS induction training comprising:

(i) general construction industry WHS induction, (ii) site-specific WHS induction training, (iii) completion of a site-specific induction record, and (iv) inclusion on the master site induction register for emergency use.

(b) a risk assessment protocol that requires Built by EPS to identify hazards and risks associated with work prior to commencing; (c) a process for development and review of SMWS for high-risk construction work that involves consultation between the project manager, site manager, workers and other PCBUs involved in a project; (d) a requirement that all work that is not high-risk construction work is assessed according to risk assessment matrix methodology and control measures are implemented according to a defined hierarchy of controls; (e) a requirement that frequent site inspections, toolbox talks, pre-start meetings and site inductions are completed; (f) the creation and use of a Safety and Environmental Risk Register that records all identified site-specific risks; (g) a consultation mechanism for communication between Built by EPS and workers about hazards and safety risks, implementation of control measures and incident reporting; and (h) management of the site, including prevention of unauthorised access to the site through installation of a 1800mm high temporary perimeters fence with a single-entry gate that is to be secured by padlock. Only the site manager or suitable delegate will be authorised to open the gate.

86. On 2 May 2022 Built by EPS provided a response to Improvement Notice 7-414806 that included a collection of documents referred to as WHS Protocols which included an induction system including:

(a) a documented agenda, which identified all matters required to be addressed in the course of an induction at the site, including:

(i) confirmation of White Card and SWMS sign-off, (ii) site orientation, (iii) identification of site and location-specific hazards, and (iv) WHS consultation arrangement and issue resolution processes

(b) maintaining a written record document for registration of all inductions undertaken at the site; (c) an induction form that confirms that an inductee has read and understood the SWMS provided by their employer.

87. The WHS Protocol's system included the requirement for the completion of a form titled “SWMS Review Checklist”. It sets out the requirements to be included in any SWMS obtained by Built by EPS and a requirement to follow up on the SWMS. It identified a requirement for the SWMS to stipulate the names and qualifications of people who will:

(a) supervise work; (b) inspect and approve work area conditions, work methods, protective measures, plant, equipment and power tools for use; and (c) be responsible for ensuring compliance with SWMS at site.

88. In addition to the above compliance with the Notices, Built by EPS has also:

(a) engaged additional leading hands to assist with supervision, licence checks, site inductions, and ensuring adequate housekeeping; (b) developed a formal SWMS review process; (c) implemented electronic inductions through an app; (d) engaged an external safety company to assist with implementing SMP's, conducting inspections and developing additional safety procedure when identified; and (e) organised for both directors to complete Master Builders Association Super Safe Course.

Offenders’ Case on Sentence

89. The offenders relied on the following documents:

(a) affidavit of Paul Wahhab sworn 22 April 2025; (b) affidavit of Anthony Kim sworn 24 April 2025; (c) affidavit of Paul Wahhab sworn 2 May 2025.

90. Mr Wahhab was present in Court for the sentence proceedings and was not required for cross-examination.

91. The following is a precis of the evidence relied on by the offenders. I will try not to repeat matters already referred to.

92. Mr Wahhab has 15 years’ experience in the construction industry and holds a number of relevant qualifications. He is presently enrolled in a Certificate IV in Work Health and Safety and has completed about 50% of the requirements of that course.

93. Built by EPS was established in 2017 and has been a member of the Master Builders Association since 2020 and a member of the Housing Industry Association since 2024. It predominantly constructs residential properties and in particular, duplexes.

94. Built by EPS currently has eight employees and is managing eight building sites. It primarily conducts construction work through the engagement and supervision of subcontractors.

95. Built by EPS was first contracted to construct the duplex at the site in September 2021. At that time Built by EPS was managing 12 building sites.

96. When the work commenced a contractor was engaged to provide and install temporary fencing at the site. After the demolition of the original house on the site, part of the temporary fence was replaced with a permanent timber fence. The temporary fencing was affixed to the new timber fence.

97. Built by EPS required each worker attending the site to work to undergo an induction provided by Mr Wahhab that covered safety issues and in particular the site specific safety rules. Mr Wahhab also consulted with subcontractors on matters of safety.

98. Mr Wahhab was on site three to four times per week and on those occasions conducted safety inspections and arranged services and deliveries of materials to the site.

99. On 24 December 2021 Mr Wahhab attended the site for about 30 minutes. He walked around the site to ensure that it was safe and secure prior to the Christmas break. The first floor concrete slabs had been poured the day before. When he left the site, Mr Wahhab secured the front gate with a combination lock. It was Mr Wahhab’s usual practice to provide the combination to the subcontractors to allow then to access the site when required. At the time, Mr Wahhab understood that no workers would attend the site before 13 January 2022.

100. CNH workers attended the site to remove the formwork on 10 January 2022, without giving prior notice to Mr Wahhab. On 11 January 2022, Mr Wahhab became aware that workers were at the site when he drove past. He stopped and spoke to the workers to find out why they were on site. He stayed for about 10 minutes.

101. Later in the morning of 11 January 2022, Mr Wahhab received a phone call informing him that Mr Anthony had been injured at the site and he returned to the site as requested. When he arrived Mr Anthony had been taken to hospital and he spoke to police officers at the site.

102. Mr Wahhab acknowledged that the Built by EPS systems in place on the day of the incident were inadequate and deposed that since that day Built by EPS has been committed to improving its systems.

103. At the site the following steps were implemented by 19 January 2022:

(a) engaging WHS Consultants to prepare an Integrated Management Plan; (b) covering the swimming pools at the site and cutting off the reo-bars; (c) barricading the stairs to the first floor of the building that did not have any edge protection in place; (d) clearing the rubbish and debris from the site; (e) filling gaps and securing the perimeter fencing at the site; (f) implementing an electronic induction system and requiring all subcontractors to be re-inducted to the site using that system.

104. Built by EPS took the following steps to improve its safety systems more broadly:

(a) implemented an online management and safety application “SiteBook”, which tracks inductions, site attendance and collects contractor SWMS, licences and insurance details; (b) engaged a dedicated WHS employee; (c) engaged a safety auditor to attend the sites of Built by EPS and report any hazards and recommend control measures; (d) implemented weekly safety inspections conducted by Mr Wahhab and the site foreman; (e) increased the use of scaffolding at its sites; (f) implemented daily tool box talks; (g) increased the use of signage relating to the risks posed by working at height.

105. Mr Wahhab has undertaken further training and attended four or five workshops conducted by SafeWork NSW to expand his knowledge of safety related issues.

106. Since the incident, Mr Wahhab estimated that Built by EPS has expended an additional $400,000 on safety. On my review of those figures and the receipts annexed to justify them, there is no document to support the figure of $100,000 for “additional labour to manage WHS” and the figure for “additional scaffolding of $181,020" probably includes costs that could be or were recovered from clients.

107. Mr Wahhab is actively involved with his church and provides financial support to it. His parish priest attests that Mr Wahhab is a person of great character who is dedicated to his family, his faith and assisting his church community.

108. Mr Wahhab attests that his only asset is his family home which he owns jointly with his wife and is subject to a mortgage of about $860,000. He presently has $2,000 to $3,000 in savings.

109. Mr Wahhab deposed that on behalf of the company and himself that he accepts responsibility for the offences and acknowledged that more could have and should have been done to prevent them occurring. He deposed that he was shaken by the incident and is very sorry for what happened and the injury to Mr Anthony. He has experienced symptoms of stress and anxiety. He is committed to doing everything that he can to ensure compliance in the future.

110. Mr Kim has been the accountant for Built by EPS and Mr Wahhab since 2019. He deposes that based on the financial statements of the company since 2021, it has returned the following results:

| Year ending 30 June 2021 | $826,928 profit | | Year ending 30 June 2022 | $1,627,401 profit | | Year ending 30 June 2023 | $556,988 loss | | Year ending 30 June 2024 | $315,547 profit |

111. Based on current figures, Mr Kim estimates in the year ending 30 June 2025 that the company will achieve a profit of approximately $326,206.

112. Mr Kim opined, based on his understanding of the financial viability of the company, that Built by EPS has had fluctuating results and that is likely to continue. Further, Mr Kim opined that like other building companies Built by EPS is facing increased material and labour costs that is negatively impacting profitability and there is always some risk of failure in the present conditions.

Consideration

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

Objective seriousness

114. The offences involve some objective gravity.

115. I have taken into account the maximum penalty for the offences.

Built by EPS

116. In relation to the clause 40(a) offence, Built by EPS failed to ensure that the layout of the workplace allowed, and the workplace was maintained so as to allow for persons to enter and exit and to move about without risk to health and safety under normal working conditions. Built by EPS failed to have the protruding steel reinforcement bars around the site adequately capped or cut down.

117. In relation to the clause 79(2) offence, Built by EPS failed to minimize the risk of a fall by a worker into a void which did not have adequate fall protection. Built by EPS was required to provide and maintain a safe system of work for the management of the risks so far as was reasonably practicable, including covering the void created by the rear duplex swimming pool with structural plywood boards that were properly secured and marked that there was a penetration below and/or placing fencing or handrails around the edges of the rear duplex swimming pool.

118. In relation to the clause 298(1)(b) offence, Built by EPS failed to comply with its duty to manage risks to health and safety associated with unauthorized access to the site. There were gaps and missing panels in the temporary and permanent fencing around the site. In addition, there was insufficient signage on the perimeter fencing to warn against unauthorized access to the site.

119. In relation to the s 32 offence, Built by EPS was responsible for the system of work. The risk of workers becoming impaled on uncapped steel reinforcement bars or slipping, tripping and/or falling into the void while working in the vicinity of the uncovered opening of the partially constructed swimming pool, was obvious and known to Built by EPS. The need for appropriate systems, training, supervision and risk management was also known, but poorly addressed. There was a large volume of guidance material available to Built by EPS at the time of the incident suggesting the provision of general construction induction training, risk management in relation to slips, trips and falls. By its plea of guilty, Built by EPS admitted that it should have covered the front duplex swimming pool, erected fencing or handrails, had adequate systems in place that managed the site-specific risks, inducted the workers accordingly, ensured the workers were competent to undertake the work at the site and provided adequate instructions. The likelihood of the risk coming home if appropriate control measures were not taken was moderate. The control measures that should have been implemented were simple, inexpensive and well known to Built by EPS. The risk included a risk of death. The injuries sustained by Mr Anthony were serious and are an aggravating feature of the offence.

Mr Wahhab

120. As a director of Built by EPS, Mr Wahhab failed to exercise due diligence to be aware of the control measures and systems that should have been implemented by Built by EPS prior to the incident, to ensure the safety of its workers, in so far as that was reasonably practicable. The s 27 duty requires those with the authority of a PCBU to take action to ensure that a PCBU can comply with its duties under the legislation. There was ample guidance material available that set out the necessary control measures that Built by EPS could have implemented. Mr Wahhab should have known that the consequences of an incident could be serious for one of Built by EPS’s workers.

Deterrence

121. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

122. There is some need for specific deterrence in this case. Built by EPS still operates a business that potentially exposes workers to risks as a result of its operation. Mr Wahhab still manages its day-to-day functions. Conversely, Built by EPS has taken comprehensive and timely steps to improve its processes and safety system as a result of the incident.

Aggravating factors

123. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes *(*Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Anthony are sufficient to establish this aggravating factor.

Mitigating factors

124. The offenders do not have any record of previous convictions: s 21A(3)(e) Crimes *(*Sentencing Procedure) Act 1999. Built by EPS has been operating its business since 16 October 2017. Mr Wahhab was 33 years of age at the time of the offence.

125. Mr Wahhab was a person of good character: s 21A(3)(f) Crimes *(*Sentencing Procedure) Act 1999.

126. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes *(*Sentencing Procedure) Act 1999. Built by EPS has taken steps to respond to the incident and has demonstrated that it has good prospects of rehabilitation. I am satisfied that Mr Wahhab, as the controlling mind of Built by EPS, has accepted responsibility for its failings that led to the offences.

127. The offenders entered a plea of guilty: s 21A(3)(k) and s 22 Crimes *(*Sentencing Procedure) Act 1999. The offenders are entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

128. The offenders co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes *(*Sentencing Procedure) Act 1999.

Totality

129. The principle of totality is applicable to the penalties to be imposed on Built by EPS. Having regard to the modest amount of the fines for the offences involving the contravention of the various regulations, I am satisfied that no further reduction for totality is warranted.

Proposed project and training orders

130. The prosecutor sought a WHS Project Order pursuant to s 238 of the Act against Built by EPS and a training order pursuant to s 241 of the Act against Mr Wahhab. The prosecutor read an affidavit of Natalie Martin affirmed 2 May 2025 in support of these applications.

131. As to the WHS Project Order, the prosecutor sought a financial contribution from Built by EPS of up to $30,000 to have an external provider produce an animation of the incident to be published on its YouTube channel and up to a further $3,500 to develop and implement a promotional strategy for the animation. The prosecutor sought orders that the payments be made within eight months of the orders being made. The proposed project order provided that SafeWork NSW would be responsible for producing and distributing the animation. Ms Martin’s evidence, which I accept, was that the animations currently on the SafeWork NSW YouTube channel are considered to be very useful by PCBUs and have been viewed by a large number of people.

132. As to the Training Orders, the prosecutor sought that Mr Wahhab and any senior managers of Built by EPS undertake due diligence training, a WHS Risk Management Course and participate in a SafeWork NSW Webinar Series provided by a Registered Training Provider approved by SafeWork NSW, within 12 months of the order being made.

133. The offenders did not oppose the making of the orders but had not been consulted about the making of the orders before the sentence hearing.

134. I am not satisfied on the evidence relied on by the prosecutor that I should make the WHS Project Order for the reasons that follow. There is no evidence of the estimated costs of the proposed animation or a date by which it will be completed and published. There is no undertaking from SafeWork NSW to the Court to pay any additional costs incurred in producing the animation, should it cost more than $30,000 to produce. I note that the same orders were sought against the co-offender, CNH, making it possible that the cost of producing the animation could be as much as $60,000 and requiring the orders to be made against both co-offenders to be effective. For the reasons expressed in the remarks on sentence relevant to the co-offender, the co-offender is likely to be insolvent. In all of the circumstances, I cannot be satisfied that the animation will be produced and published within a reasonable timeframe.

135. As to the Training Order sought for Mr Wahhab, I am satisfied that the scope of the Certificate IV course in WHS is likely to be more comprehensive than the orders sought by the prosecutor. I will make a training order that he complete the balance of the Certificate IV course within 12 months. The orders sought relating to “senior managers (if any are employed)” are too uncertain to be capable of effective enforcement and I decline to make orders to that effect.

Capacity to pay a fine

136. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offenders’ capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

137. Built by EPS has been well managed, and its financial statements indicate that it is capable of paying appropriate fines for the offences to which it has pleaded guilty. Similarly, I am satisfied that Mr Wahhab has sufficient equity in his home to pay an appropriate fine.

Penalty – Built by EPS Pty Ltd

138. Built by EPS Pty Ltd is convicted.

139. The appropriate fine for the clause 40(a) offence is $6,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $4,500.

140. The appropriate fine for the clause 79(2) offence is $4,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $3,000.

141. The appropriate fine for the clause 298(1)(b) offence is $2,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $1,500.

142. The appropriate fine for the s 32 offence is $200,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $150,000.

143. The total amount of fines imposed on Built by EPS Pty Ltd is $159,000.

Penalty – Paul Wahhab

144. Paul Wahhab is convicted.

145. The appropriate fine for the s 32 offence is $20,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $15,000.

146. I order pursuant to s 241 of the Act that Paul Wahhab complete the Certificate IV in Work Health and Safety on or before 15 May 2026.

147. Paul Wahhab is to provide evidence to the prosecutor and to the Court on or before 15 April 2026 that he has completed or will complete the Certificate IV in Work Health and Safety by 15 May 2026.

Other orders

148. I order that the offenders pay the prosecutor’s costs of the proceedings, as agreed or assessed.

149. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fines are to be paid to the prosecutor.

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