Can Do Projects Pty Ltd (CDP) pleaded guilty to an offence that being a person with a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Arsalan Salehiroshankouhi to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million.
Behnam Yekta pleaded guilty to an offence that as an officer of CDP he had a health and safety duty under section 27(1) of the Act, he failed to comply with that duty and thereby exposed Mr Salehiroshankouhi to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $300,000.
[2]
Facts
The parties presented an Agreed Statement of Facts. There was one fact that was in dispute, which was the subject of oral evidence and I will return to that issue shortly.
HT Building Pty Ltd (HT) was the principal contractor for the construction of residential units as part of a development known as the Mount Gilead Retirement Village at 72 Glendowner Street, Gilead (the site). CDP was engaged by HT to supply materials and undertake the necessary carpentry work to construct the units. Mr Yekta was the sole director of CDP and undertook work as a carpenter at the site from time to time.
At the time of the incident, the units were partially completed. The building at that time consisted of a ground level slab and masonry walls and a first floor slab on top of which timber frames were being constructed that would later be covered with cladding or in which windows would be installed. The first floor included some voids that were to be courtyards on the ground floor.
There was a large window opening on the first floor level of unit 453 (the unit) which opened onto a courtyard void (the void) below. The slab of the first floor level was about 3.66m above the level of the void.
CDP commenced work at the site on 17 July 2017. Mr Salehiroshankouhi commenced work at the site for CDP on 25 July 2017 and worked with Mr Yekta on 25-27 July 2017.
On 27 July 2017, Peter Whittaker, a supervisor engaged by HT, arrived on site at 6.45am. He noticed that there was no fall protection in place in the void. A scaffold had been present in the void up to the day before the incident. At about 7.00am, he told two labourers engaged by HT to remove some waste material from the ground level slab and to erect a scaffold in the area of the void to provide fall protection.
At about 10.45am Mr Yekta and Mr Salehiroshankouhi were working on the first floor slab in the vicinity of the void. Mr Salehiroshankouhi stepped backwards and fell through the window opening in the timber framing, falling into the courtyard below. At the time, Mr Yekta and Mr Salehiroshankouhi had been installing pieces of timber horizontally to act as a guard rail providing fall protection on the first floor.
Mr Salehiroshankouhi suffered five broken ribs on his right side, a broken finger, pulmonary contusions and lacerations. He was taken to Liverpool Hospital and discharged on 3 August 2017. He continues to undergo rehabilitation and to seek treatment for his injuries.
On 11 July 2017 CDP provided a Safework Method Statement (SWMS) to HT relating to the work to be undertaken. The SWMS was approved by the principal contractor. Mr Salehiroshankouhi signed the SWMS on 25 July 2017.
Workers from CDP, including Mr Salehiroshankouhi, were inducted by the principal contractor at a site induction on 17 July 2017. The workers were instructed that working over 1.8m in height without fall protection was prohibited on the site. CDP did not provide documented training to Mr Salehiroshankouhi and he did not recall being provided with any instruction by CDP or Mr Yekta in relation to working near the window openings.
On 24 July 2017 Brad Garlick of HT documented a toolbox talk and walk- through with Mr Yekta before CDP could start work at the site. At that time Mr Yekta was instructed not to work on the first floor without adequate fall protection.
An engineer on behalf of the principal contractor created a fall protection procedure that provided "edge protection safety platforms may only be removed upon approval from the Site Manager." Mr Yekta and CDP did not comply with the fall protection procedure by performing work on the first floor level without fall protection in place.
A scaffold had been in place in the void prior to 26 July 2017. On the morning of 27 July 2017 it was no longer in place and its removal could not be explained. On 27 July 2017 CDP were in the process of installing edge protection across the window openings on the first floor level of the timber framing. CDP did not wait until other fall protection measures were put in place before performing that work. There was adequate mobile scaffolding available at the site.
[3]
Disputed Fact
Mr Whittaker was called to give evidence. His evidence was that he spoke to Mr Yekta at about 7.15am on 27 July 2017 and told him not to work in the area of the void until the scaffold was in place.
In cross-examination Mr Whittaker agreed that the lack of fall protection in the area of the void was obvious and that it was possible that he did not give any direction to Mr Yekta because he would have expected the workers not to work in that area.
In his evidence, Mr Yekta did not recall being given a direction by Mr Whittaker. In cross-examination he maintained that position.
On the evidence, I am not satisfied beyond reasonable doubt that the prosecutor has established that Mr Whittaker gave Mr Yekta a direction not to work in the area of the void until the scaffold was in place. However, I am satisfied on the basis of the agreed facts that Mr Yekta knew by reference to HT's safety system that CDP was not to work in any area where there was a risk of falling 1.8m or more, without fall protection in place.
[4]
The Offenders' Case on Sentence
The offenders read an affidavit of Behnam Yekta sworn 11 June 2020. Mr Yekta was called and cross-examined. His evidence can be summarised as follows.
Mr Yekta was born in Tehran and came to Australia in 1996 at the age of seven. After leaving school he obtained an apprenticeship in carpentry and became trade certified in 2010. He obtained a builder's licence in 2019. He operated as a sole trader between 2010 and 2014 before incorporating CDP. In the past, CDP has employed carpenters and engaged sub-contractors to carry out its work.
Mr Yekta deposed that the injury to Mr Salehiroshankouhi was the first serious injury that had occurred under his supervision. CDP has never been issued with an improvement notice or prosecuted under any health and safety laws.
On 27 July 2017 Mr Yekta arrived at the site and noticed that there was a lack of fall protection in the area of the void, which had been there on the previous day. He did not recall being told not to work in that area by Mr Whittaker. He commenced work at another location on the site before coming to work on the first floor slab. He was working with Mr Salehiroshankouhi to install guard rails as fall protection in the window frames of the first level. They were completing this work at the time of the incident. They were talking when Mr Salehiroshankouhi half turned and stepped backwards into the void before falling.
Mr Yekta deposed that there was no need to install guard rails prior to 27 July 2017 because adequate fall protection had been in place. He deposed that he understood the risk posed by working at height and that at the time of the incident he had assessed the likelihood of a fall as small. He acknowledged that the risk posed by working on the first floor slab in the area of the void was unacceptable and that Mr Salehiroshankoui's serious injuries were caused by his decision to do the work. He deposed that he will not do so again in the future and will not work or allow his employees or sub-contractors to work unless it is completely safe to do so.
In cross-examination it was suggested to Mr Yekta that another worker had suffered a serious knee injury whilst under his supervision in 2016. Mr Yekta gave evidence that that employee had slipped and that he did not regard that incident as being his fault.
Mr Yekta was asked questions in cross-examination about the company accounts. It was clear from the content of his evidence that he understood very little about the content of the accounts and had relied on his accountant to prepare them accurately. He accepted that there were significant depreciation expenses in the accounts as a result of his purchase of new machinery. He accepted that he and his wife had assets including a home and an investment property and that he had not provided details of his personal financial position to the Court.
[5]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[6]
Objective Seriousness
The offences are of some objective gravity.
The risk of a fall from height from the unprotected edge of the first floor slab was obvious and known to the defendants. The risk of a fall had previously been eliminated by the use of scaffolding in the void. The defendants were aware that the safe system of work set up at the site by HT included that a direction that work was not to be performed in any area where there existed a risk of a fall of 1.8m or more.
The risk was likely to occur if adequate precautions were not taken.
The consequences of the risk involved a risk of death and serious personal injury.
The defendants knew that the scaffolding and mobile scaffolds were available at the site for use in the void and that Mr Whittaker had taken steps to get labourers from HT to make the area safe. The prohibition on working in areas without adequate fall protection was communicated to the defendants through the site induction and toolbox talks.
The steps that could have been taken were relatively simple and could have been implemented with little inconvenience and expense.
I have taken into account that at the time of the incident that CDP, under the direction of Mr Yekta, was trying to make the first floor safe to access to undertake its work. Despite the fact that Mr Whittaker had directed the HT labourers to install the scaffold at about 7.00am that had not been done by the time Mr Yekta and Mr Salehiroshankouhi commenced this work.
I have taken into account the maximum penalty for the offence.
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is some need for specific deterrence in the penalty to be imposed on the offenders because CDP continues to operate the business and to engage contractors who may be placed in a position that they could be exposed to risks to their health and safety. Mr Yekta continues to be the controlling mind of CDP. The need for specific deterrence is reduced because I am satisfied that the need to be more vigilant has been brought home to Mr Yekta by these proceedings and that he has taken steps to address the circumstances that led to the commission of the offences.
Aggravating Factors
The prosecution contended that the injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk.
The injuries to Mr Salehiroshankouhi were no doubt painful and caused him some disability. It was an agreed fact that he continues to receive treatment for his injuries and to undergo rehabilitation but I do not know what this involves. I have no evidence as to the nature of the injury described as "pulmonary contusions" or as to his incapacity for work or otherwise as a result of the injuries sustained in the fall. I am not satisfied that the injuries sustained by Mr Salehiroshankouhi were substantial within the ordinary meaning of that word as it is used in the statute. I am not satisfied beyond reasonable doubt that the prosecution has established the aggravating factor provided for by section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.
Mitigating Factors
The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Mr Yekta is now 31 years of age and CDP has been in operation for about six years.
Mr Yekta was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Mr Yekta has no previous convictions and conducted himself in a way following the incident that demonstrates he is a person of good character.
The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied that Mr Yekta has accepted that he needs to improve his processes in relation to providing for the health and safety of his employees and/or sub-contractors and that he has changed his practices since the incident.
The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Yekta, on behalf of CDP and himself, accepted responsibility for the failings leading to the injury to Mr Salehiroshankouhi and acknowledged that the injuries were his fault. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for their actions and have demonstrated remorse.
The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. An offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offenders co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
Capacity to Pay a Fine
The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
The accounts of CDP for the period ending 30 June 2019 demonstrate that it is a relatively small company, but that it has some capacity to pay an appropriate fine in this matter.
I note that Mr Yekta's distributions from the company are not substantial, but that he has assets that he has not disclosed.
Ultimately, neither of the offenders submitted that they had a reduced capacity to pay a fine.
[7]
Penalty - CDP
Can Do Projects Pty Ltd is convicted.
The appropriate fine is one of $80,000 which will be reduced by 25% to give effect to the plea of guilty.
I impose a fine of $60,000.
The offender is to pay the prosecutor's costs as agreed or assessed.
[8]
Penalty - Mr Yekta
Behnam Yekta is convicted.
The appropriate fine is one of $20,000 which will be reduced by 25% to give effect to the plea of guilty.
I impose a fine of $15,000.
The offender is to pay the prosecutor's costs as agreed or assessed.
[9]
Moiety of the fines
In each matter, I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
[10]
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Decision last updated: 01 July 2020