SafeWork NSW v Chris Darby Strata Pty Ltd

District Court of NSW|2024-08-07

Solicitors: Department of Customer Service (Prosecutor) HWL Ebsworth Lawyers (Defendant) File Number(s): 2022/168593

Judgment

The defendant, Chris Darby Strata Pty Ltd (Chris Darby Strata), was the managing strata agent of a strata title industrial complex in Berkeley, NSW (the site). On 12 June 2020 a damaged gate at the site fell and fatally crushed Mr Jose Martins.
Chris Darby Strata has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 20(2) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed persons, including Mr Martins, to a risk of death or serious injury contrary to s 32 of the WHS Act.
Section 20 of the WHS Act provides: "Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include - (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person."
The maximum penalty for the offence is a fine of $1,731,500.

The Risk

The risk described in par 12 of Annexure A to the Amended Summons is as follows: "The risk was the risk to persons, in particular Mr Martins, suffering serious injury or death as a result of the damaged Gate falling on them and thereby striking or crushing them while attempting to manually operate the Gate at any time after the motor vehicle accident."

Reasonably Practicable Measures

Paragraph 13 of Annexure A to the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 20(2) of the WHS Act as follows: "The defendant failed to ensure so far as is reasonably practicable, that the means of entering and exiting the Site, were without risks to the health and safety of any person, and in particular Mr Martins, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if not reasonably practicable to eliminate, the risks to the health and safety of any persons: (a) Require that a competent person promptly repair or replace the damaged Gate after the defendant was notified on 5 June 2020 of the motor vehicle incident resulting in damage to the Gate. (b) Arrange for the damaged Gate to be immediately tagged out, or otherwise taken out of service to prevent it from being manually operated, until repairs or replacement of the Gate had been completed by a competent person. (c) Communicate to the owners at the Site such as by use of warning signs, exclusion zones and/or temporary barricades that the damaged Gate should not be operated unless and until such operation of the Gate was deemed to be safe by a competent person. (d) Confirm and follow up with relevant competent persons the required timeframes for repair or replacement work, to be undertaken, once the defendant had been notified by the Owners Corporation of the damage to the Gate."

Background

The parties presented an Agreed Statement of Facts (PX 1, Tab 2) which is summarised below.
Maluko Pty Ltd (Maluko) was a person conducting a business or undertaking (PCBU) at the site. The site was an industrial complex comprised of eight units, each occupied by a separate unit owner or tenant. Maluko initially owned and built the industrial complex at the site in approximately March 2017. It then sold off the units but leased Unit 5.
Maluko's business or undertaking involved building and concreting services. Maluko employed approximately five workers, including Mr Martins and Mr Steven Ferreira. Mr Ferreira was Maluko's manager and sole director.
The site was managed and controlled, in part, by The Owners - Strata Plan No 93899 (Owners). Pursuant to ss 106(1) and (2) of the Strata Schemes Management Act 2015 (NSW), Owners had duties to properly maintain and keep in a state of good and serviceable repair the common property at the site and to renew and replace any fixtures or fittings in the common property.
In 2019 Owners executed an agreement appointing Chris Darby Strata as the strata managing agent for the site. The agreement was signed by Mr Roy Christopher Darby and Ms Jennifer Louise Darby as directors of Chris Darby Strata.
The agreement gave Chris Darby Strata authority to provide agreed services and additional services at the site. Agreed services included effecting repairs to and maintaining the common property and engaging suitably qualified persons for carrying out standard work at the site. The engagement of appropriately qualified persons for non-standard work was an "additional" service which required a resolution by Owners.
Chris Darby Strata employed Ms Karen Johnson as a strata manager. At the time of the incident Ms Johnson had been in her role for approximately four weeks. Ms Johnson holds a strata licence and has done so since 2019.
Ms Johnson was responsible for the day-to-day management of the site, on behalf of Chris Darby Strata. At the time of the incident Ms Johnson had responsibility for approximately 107 strata properties, including the site. Ms Johnson reported to the Regional Manager employed by CNG Property Group (CNG), the parent company of Chris Darby Strata.
In respect of the site, Ms Johnson took instructions from Mr Mario Perossa on behalf of Owners.
When Maluko developed the site, a perimeter fence was built and included a large, custom-built sliding electric gate (the gate). The gate included guideposts and an end-stopper (stopper) to prevent the gate from overtravel in the closing direction. The gate was approximately 8.5 metres long and over 2 metres high.
The gate was also fitted with a sensor which caused the electric motor to stop as soon as the gate hit any obstruction, including the stopper. Each unit holder or tenant at the site had a remote-control pendant to operate the gate.
Access to the site was also possible through a pedestrian gate which was manually operated and which was secured by a wire rope with a padlock.
The gate was part of the common property at the site, so the ownership of the gate vested in Owners.

The Events of 4 June 2020

On the night of 4 June 2020, a van collided with the gate at high speed (PX 1, Tab 6). The gate remained upright but was bent out of shape, partially pulled off its track, and disconnected from its electric motor. The guideposts were also damaged, and the stopper had come out of position and was no longer capable of preventing overtravel of the gate.
As a result of the collision the gate presented a risk of falling as a result of moving past the displaced stopper in the closing direction and thereby allowing the gate to overtravel past the guideposts and become unsupported by the rollers.
Following the collision, NSW Emergency Services attended the site and secured the gate and perimeter fence. However, it was not otherwise tagged out, repaired, replaced, made safe or attended to.
On 5 June 2020, a number of occupants within the site undertook makeshift repairs to the gate, without notifying Chris Darby Strata. The ad hoc repairs were not instrumental in remediating the damage to the gate and did not eliminate or otherwise address the risk of the gate falling or collapsing.
An adequate physical stopper to prevent overtravel of the gate was installed as part of the temporary makeshift repairs.

The Incident on 12 June 2020

On 12 June 2020 at approximately 5.45am, Mr Martins arrived for work at the site. Mr Martins' usual duties involved him opening the gate and Maluko's workshop before the arrival of the other workers.
At no time was Chris Darby Strata made aware of Mr Martins' usual duties of opening the gate and Maluko's workshop.
Upon his arrival at the site, Mr Martins drove his vehicle up to the entrance at the site. The gate was padlocked and after the ad hoc repairs was able to be operated manually. Mr Martins alighted from his vehicle to manually unlock and open the gate. Mr Martins attempted to push open the gate from several positions, however, it would not slide open.
As Mr Martins was attempting to push the gate open, the lack of a physical stopper allowed the gate to move too far in the closing direction, to the point where it came out from its guideposts and supporting rollers.
Once out of the rollers, the gate fell against a post that was part of the temporary repairs to the fence. The gate was resting at an angle and no longer aligned with the supporting rollers.
Mr Martins was attempting to push the gate back into position between the supporting rollers when the gate became unstable and fell onto him. The gate pinned Mr Martins to the ground at the entrance to the site until other workers arrived about 15 minutes later and lifted the gate off him. The incident was recorded on CCTV footage (PX 1, Tab 5).

Injuries

Mr Martins sustained fatal crush injuries as a result of the incident. He was 64 years old.

Systems of Work Prior to and at the Time of the Incident

The gate system included the gate, a pair of vertical guideposts at each side of the driveway, the stopper, and approximately 16 metres of ground track. The guideposts were taller than the gate and they provided physical support to prevent the closed gate falling to the ground.
The stopper was in place to prevent the gate from moving too far and travelling beyond the guideposts and the support rollers. The motor was at the southern end of the gate and pulled the gate open in that direction, but only to a set distance so that the gate could not go too far.
After the vehicle collision on 4 June 2020 the gate was unable to operate in its usual manner. The gate had become disconnected from the motor and the guideposts at the northern end were destroyed.
There was no system in place for ensuring that the gate was made safe by using warning signs, exclusion zones, and/or temporary barricades after damage of the kind that occurred on 4 June 2020.
From 5 June 2020 until the day of the incident on 12 June 2020, the gate was opened and closed manually by various workers at the site, including Mr Martins, as necessary when entering and leaving the site. During this period, there was no system of work in place for ensuring the safe manual operation of the gate.
Neither Chris Darby Strata nor Owners arranged for an immediate risk assessment of the damage to the gate to be carried out by a competent person, and no risk assessment was conducted in relation to the presence of the gate in its damaged condition or in relation to it being operated manually.
There was no Safe Work Method Statement or safe work procedure developed for the manual operation of the gate, nor was any training or information provided to workers at the site in relation to the safe manual operation of the gate.
There was no process or procedure in place for assessing damage to the gate at the time of the collision on 4 June 2020. There was also no system in place for ensuring the gate was tagged out or otherwise taken out of service from 4 June 2020 to prevent it from being used until proper repairs had been carried out.
Owners reported the damage to the gate to Chris Darby Strata on the morning of the collision. Ms Johnson received approval from Mr Perossa, on behalf of Owners, to arrange repairs to the gate and fence. However, no indication about the urgency for the repairs was communicated by Owners to Chris Darby Strata.
On 5 June 2020, the morning that Ms Johnson was notified of the damage to the gate, Ms Johnson issued a work order to iAutomate Gates and Doors (iAutomate) to repair the damage.
Ms Johnson did not inform iAutomate of any urgency in relation to having the repair work done, nor did Chris Darby Strata arrange for the gate to be repaired or replaced as a matter of urgency.
On the morning of 5 June 2020, Chris Darby Strata also issued a work order to Imperial Plumbing to repair severe damage caused to the water meter at the site as a result of the 4 June 2020 collision. These repairs were completed on an urgent basis that day.
Chris Darby Strata did not confirm with Owners the required timeframe for the repair work to be done and consequently, did not inform iAutomate of any urgency associated with the required repair work.
Chris Darby Strata did not communicate to the persons working at the site that the damaged gate should not be manually operated unless and until a competent person deemed it to be safe.

Guidance Material

The following guidance material was available at the time of the incident: 1. SafeWork NSW (SafeWork) Code of Practice, Managing the Risks of Plant in the Workplace, August 2019 (PX 1, Tab 13). Part 3.6 provided that damaged plant that poses a risk to health and safety should be withdrawn from service until those risks have been controlled. 2. SafeWork Code of Practice, Managing the Work Environment and Facilities, August 2019 (PX 1, Tab 12). Part 1.1 provided specific guidance to entities with responsibilities under s 20 of the WHS Act. Part 1.3 provided clear guidance on the need for promptly replacing or repairing damaged fixtures and fittings within the work environment. 3. Western Australian Safety Alert, Worker Crushed by Falling Gate, August 2018 (WA Safety Alert) (PX 1, Tab 14), which provided: 1. "When an incident occurs that results in damage to a gate or when it is identified that a gate is not working correctly, the gate should be immediately tagged out and the employer property owner and/or property manager notified." 2. "Any damaged or defective gates should be immediately assessed and repaired by a competent person." 3. "Until such repairs are completed, measures must be implemented to keep people away from a damaged gate (for example by temporary barricades, exclusion zones, warning signs)."

Systems of Work Following the Incident

The gate was removed by a crane on 12 June 2020, the day of the incident. In late September 2020 a new automatic electric gate was installed at the site.

Evidence for the Defendant

Mr Philip Kooper swore an affidavit on 30 July 2024 (DX 1). Mr Kooper is the Group Advisor - Risk and Governance at CNG, the parent company of Chris Darby Strata.
Mr Kooper annexed a bundle of documents to his affidavit marked "PK-1". Documents within PK-1 are referenced by their page number.
Mr Kooper is a licensed strata manager and has worked in strata management since around 2003. Between 2005 and 2018 he owned his own strata management company, Kooper & Levi Strata Management.
Mr Kooper sold Kooper & Levi Strata Management to the same group that Chris Darby Strata was part of, which is now known as CNG. In July 2019 Mr Kooper provided contracting services to CNG's business development department and in April 2022 he joined CNG as the "Head of Strata Governance" across CNG's various companies, including Chris Darby Strata. As of July 2024, Mr Kooper's title changed to "Group Advisor - Risk and Governance".

Background of Chris Darby Strata

Chris Darby Strata provides strata management services across numerous properties within the Wollongong and Illawarra region.
CNG is comprised of a group of companies with a focus on the strata management sector. In or around August 2019, CNG purchased the Chris Darby Strata business.
Chris Darby Strata was a family run business established by Mr and Ms Darby in the 1970s. Over 40 years, Mr and Ms Darby built the largest strata company in the Wollongong and Illawarra region before selling it in or around August 2019.
Mr Kooper said that despite being bought by CNG, Chris Darby Strata "remains a small local business at heart with strata managers locally based in the Wollongong and Illawarra region".
In June 2024, CNG implemented a new trading name for Chris Darby Strata, as part of a broader rebranding of businesses it has acquired. The new name is "Jamesons Strata Management Wollongong and South Coast".
There are approximately 140 locally based staff employed across CNG. Mr Kooper said that safety and risk management systems are very important considerations for Chris Darby Strata and CNG.

Contrition

Mr Kooper stated that he had been authorised, on behalf of the directors of Chris Darby Strata, to inform the Court that: 1. Chris Darby Strata accepts that it, together with Maluko and Owners, is responsible for Mr Martins being exposed to risks to his health and safety and that Chris Darby Strata failed to ensure Mr Martins' safety. 2. Chris Darby Strata is "deeply remorseful" for the incident and is sorry for the loss of Mr Martins' life and the hurt that the incident caused to Mr Martins' family and friends.
Mr Kooper, on behalf of Chris Darby Strata, offered an "unqualified apology" for its breach of the WHS Act and accepted responsibility for its failings, as particularised in the Amended Summons.

The Site

Owners engaged Chris Darby Strata to provide strata management services at the site by a resolution at a general meeting on 13 December 2017, and subsequently at a further general meeting on 11 May 2019.
The services that Chris Darby Strata was to provide at the site were detailed in the Strata Management Agreement dated 11 May 2019. A copy of the agreement is at pp 1-16 of PK-1.
Mr Kooper said that the Strata-By-Laws for the site were adopted in an Owners meeting. Mr Kooper reproduced cl 12 of the Strata By-Laws in his affidavit and annexed a copy of the Strata\ By-Laws at pp 17-22 of PK-1. Clause 12 provided that: "[T]he owner or occupier of a lot must not do anything or permit any invitees of the owner or occupier to do anything on the lot or common property that is likely to create a hazard or danger to the owner or occupier of another lot of any person lawfully using the common property."

Chris Darby Strata's Systems of Work Prior to the Incident

Mr Kooper explained that strata managers act on instructions received from the strata committee or its representatives regarding issues at a site. He said that a strata manager relies on an approved group of contractors with relevant competencies to effect repairs on any strata site, in accordance with instructions provided by the strata committee or its representative.
Mr Kooper said that Chris Darby Strata's strata managers rely on contractors engaged on behalf of owners to correctly assess and conduct repairs, and to advise on appropriate actions to be taken.
When Ms Johnson was appointed as the strata manager for the site, Chris Darby Strata sent an email to Mr Perossa, notifying him of Ms Johnson's appointment and providing Ms Johnson's contact details. A copy of this communication was annexed at p 23 of PK-1.

Repairs to the Gate in Early 2020

In January 2020, Owners had requested that repairs be undertaken to the track of the gate. The repairs were arranged by Chris Darby Strata with iAutomate, and Owners had initially accepted iAutomate's quote.
Mr Kooper said that he is aware that iAutomate was a contractor frequently used by Chris Darby Strata. Mr Kooper had found iAutomate to be a reliable contractor and there had been no previous issues or concerns with the services they had provided.
On 16 January 2020, Angelo Cacciola, the occupant of Unit 7 at the site, advised Chris Darby Strata that the work was no longer required because "the builder" had replaced the track. A copy of the strata manager Roger Lingal's file notes is annexed at p 26 of PK-1.

Covid-19 Restrictions and Impact on Chris Darby Strata

From approximately 16 March 2020 as a consequence of Covid-19 restrictions, all client facing activities, including meetings and site visits, ceased. Chris Darby Strata communicated this change to their clients on or around 16 March 2020. A copy of the communication is at p 27 of PK-1.

The Events Between 4 June 2020 and 12 June 2020

Mr Kooper provided additional information about the events leading up to and related to the incident.
Mr Kooper said that on the morning of 5 June 2020, Ms Johnson received a call from Mr Cacciola, the owner of Unit 7 at the site, informing her that a car had hit the site's fence and had caused damage to the gate and water meter. A copy of Ms Johnson's file note of this call is at p 49 of PK-1.
Later on 5 June 2020, Ms Johnson received a follow-up email with attached photographs from Mr Cacciola. A copy of the email and photographs is at pp 29-48 of PK-1. The photographs show that the gate was significantly damaged, and that the area was taped off by NSW Fire Brigade tape.
Mr Kooper reiterated that Chris Darby Strata was not informed that there was any need for urgency in relation to repairing the gate. Mr Kooper added that Chris Darby Strata was not informed on 5 June 2020 that there was an intention to use the gate, and was not informed prior to 12 June 2020 that the gate was being used.
Notes made by Ms Johnson show that Ms Susan Petrovski called Ms Johnson on 10 June 2020 to enquire about whether vehicles that sustained damage at the time the gate was damaged by the collision would be covered under the strata insurance. The notes show that the subject of the call did not include the status of the gate or whether it was being used.
A copy of an extract of Ms Johnson's file notes of all incoming and outgoing calls between 5 June 2020 and 12 June 2020 relating to the vehicle collision and associated damage is at p 49 of PK-1.
Chris Darby Strata was not informed, at any time, that any of the site's unit owners intended to effect repairs to the gate, or that they had in fact effected repairs. Chris Darby Strata was also not informed that the tape placed by the NSW Fire Brigade was to be, or was, removed.
A copy of the email and work order issued by Chris Darby Strata to iAutomate on 5 June 2020 is at pp 50 and 51 of PK-1. Mr Kooper said that the "due date" listed on the work order is a date that is automatically inserted when Chris Darby Strata prepares and issues a work order to a contractor. Mr Cacciola and Mr Perossa were blind copied into the email correspondence and work order issued by Ms Johnson to iAutomate on 5 June 2020.
At 12.04pm on 5 June 2020, Ms Johnson forwarded to iAutomate a copy of the photographs sent by Mr Cacciola. A copy of this email is at pp 28-48 of PK-1.

Cooperation with SafeWork

Chris Darby Strata cooperated with SafeWork's investigation into the incident by providing information and documentation and facilitating an interview.

Following the Incident

On 12 June 2020, Ms Johnson spoke to a SafeWork inspector who requested that arrangements be made to remove the gate. Ms Johnson called iAutomate, who advised that they could not remove the gate that day but suggested contacting Gelcon Manufacturing (Gelcon). Ms Johnson spoke to Gelcon who advised that they could attend the site within an hour. Ms Johnson then issued an urgent work order to Gelcon.
Ms Johnson emailed the chief executive officer and director of CNG at 12.04pm on 12 June 2020, outlining the events and actions taken. A copy of the email is at p 53 of PK-1.
Chris Darby Strata is no longer the agent for Owners at the site. Its appointment ceased by mutual agreement in December 2022.

SMATA

In around February 2021, CNG introduced a new strata management software to all companies within the CNG group called "SMATA".
SMATA is a cloud-based platform that enables strata managers and stakeholders to track the status of work being done in relation to maintenance and repair issues.
As part of the SMATA platform, strata managers allocate jobs for repairs and maintenance to relevant contractors, review allocated jobs for repairs, confirm if jobs have been attended to, and confirm if inspections have been booked. SMATA also allows contractors to send messages to strata management, raising questions or identifying issues, and to upload photographs to show the progress of a job.
Access to SMATA is provided to each owners corporation that enters into a strata management agreement with Chris Darby Strata. This enables members of the owners corporation committee to be notified when a work order has been sent and to follow its progress. Persons with access to SMATA can also send messages directly to Chris Darby Strata through the platform. Further, where maintenance or repairs authorised by the owners corporation affect particular units, the unit owners can be added to SMATA so that they receive any information relevant to the maintenance or repair.
The SMATA platform also enables contractors to upload warning notices when they attend a site and identify a circumstance that creates a disruption or safety hazard.
When a contractor is notified of an allocation of a work order through SMATA, the contractor is given a completion date which varies based on the urgency of the matter. If the contractor does not complete the job by the specified completion date, SMATA creates an alert, making it clear to all persons involved that the job is incomplete. SMATA then sends automated reminder emails to all persons linked to the job, including the strata manager, owners corporation representative, and contractor.

Repairs and Maintenance Compliance Team

As strata managers have a wide variety of responsibilities, CNG has progressively been introducing a specialised team to deal with repair and maintenance issues across the companies within CNG.
The Repairs and Maintenance Compliance Team works in conjunction with strata managers by ensuring that repair and maintenance jobs are on the SMATA platform and have been allocated. This team is responsible for ensuring that allocated contractors complete the work, and to resolve issues that arise with jobs, such as site access issues.

Community Involvement

Chris Darby Strata and CNG are part of the Strata Community Association and have been since its inception over 40 years ago. The Strata Community Association is the peak body for industry managers, lot owners, tenants and stakeholders living in or affected by strata title, body corporate, community title and owners corporations.
CNG has participated in the St Vincent de Paul Society "CEO Sleep Out" for the past five years and has raised over $50,000 in donations through the initiative.
In 2020, CNG donated $20,000 to the NSW Rural Fire Service following the "Black Summer" bushfires. CNG's chief executive officer also donated the value of his monthly salary to the NSW Rural Fire Service in January 2020. CNG also coordinated the collection of supplies for firefighters and community members impacted by the bushfires from a wide variety of donors, including staff and management members, and assisted with sorting and packing essential home and food items for distribution by the charity organisation Fire Relief Run.

Safe Work History

Chris Darby Strata has been operating for approximately 40 years, and the entities that comprise CNG have been continuously operating since 1973. Neither Chris Darby Strata, CNG nor any of its entities have previously been charged or convicted under the WHS Act.

Consideration

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

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 WHS 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 WHS Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from 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 of the gate falling was foreseeable. As a strata managing agent, Chris Darby Strata should have been aware of the dangers posed by such heavy sliding gates, if they were damaged. The Guidance Material, in particular the WA Safety Alert (PX 1, Tab 14), specifically said that property managers, as well as employers and property owners, had to identify the potential hazards posed by large, heavy gates. 2. The likelihood of the risk occurring was significant. The WA Safety Alert also said that such gates had to be "immediately" assessed. Further, until repairs were completed, measures had to be taken "to keep people away from a damaged gate". 3. The potential consequences of the risk were serious injury or, as happened, death. 4. There were simple steps available to eliminate or minimise the risk, being the steps pleaded in par 13 of Annexure A to the Amended Summons (PX 1, Tab 1). 5. There was no burden or inconvenience involved in those steps. Chris Darby Strata was a PCBU operating for profit and could charge its customers for work done. 6. The death of Mr Martins was caused by the breach of a safety duty by Chris Darby Strata. 7. This was a continuing offence and the evidence shows that workers were exposed on several days to the risk, not just on 12 June 2020 - see par 12 of Annexure A to the Amended Summons (PX 1, Tab 1) and par 38 of the Agreed Statement of Facts (PX 1, Tab 2). 8. The maximum penalty for the offence is a fine of $1,731,500, which reflects the legislature's view of the seriousness of the offence. The penalty increased from $1,500,000 to $1,731,500 only two days before the incident, but during the period of the continuing offence committed by Chris Darby Strata: see SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 at [3] - [40]. 9. The default of Maluko and Owners (discussed below in relation to parity) made a significant contribution to the creation of the risk and the death of Mr Martins. However, Chris Darby Strata had its own independent safety duty under the WHS Act. As the strata managing agent it had (along with Owners) the power as well as the obligation to make the site safe. 10. This case is not of the usual type which comes before the court, where a PCBU creates or ignores a risk to workers engaged or controlled by it. The risk here was greatly increased by persons unknown performing ad hoc repairs to put the gate back into service before it could be professionally repaired.
I find that the level of culpability of Chris Darby Strata is in the lower end of 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 WHS 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. Chris Darby Strata is still conducting a business involving the management of strata properties.

Aggravating Factors

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

Mitigating Factors

Chris Darby Strata has no previous convictions (PX 1, Tab 4): s 21A(3)(e) CSP Act.
Chris Darby Strata is otherwise of good character: s 21A(3)(f) CSP Act.
Chris Darby Strata is unlikely to re-offend: s 21A(3)(g) CSP Act.
Chris Darby Strata has good prospects of rehabilitation: s 21A(3)(h) CSP Act. 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.
Chris Darby Strata has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Martins was caused by its actions.
Chris Darby Strata entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Chris Darby Strata a 25% discount for an early plea.
Chris Darby Strata gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

Maluko and Owners were also prosecuted for a breach of their health and safety duties arising under the WHS Act, relating to the same incident: SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274; SafeWork NSW v The Owners - Strata Plan No 93899 [2024] NSWDC 277. After a 25% discount for each offender, Maluko was fined $375,000 and Owners was fined $225,000.
Where two or more offenders are involved in the same criminal conduct or enterprise, the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
The principle operates in the nature of a "check" required of the sentencing court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
The court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
It is appropriate for the court to consider the respective contributions of Maluko, Owners, and Chris Darby Strata. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
Both counsel submitted that Chris Darby Strata was less culpable than Maluko. That much is obvious.
Counsel for the prosecutor submitted that Chris Darby Strata was more culpable than Owners. Senior Counsel for the defendant submitted that the culpability of Chris Darby Strata was "significantly lower" than that of Owners.
I find that Chris Darby Strata was less culpable than Owners, for the following reasons: 1. Owners had personnel on site who should have inspected the gate and prevented it from being manually operated before it was repaired. Chris Darby Strata did not attend the site and was not permitted to at the time because of COVID-19 restrictions. 2. Owners should have been aware that ad hoc repairs had been made to put the gate back into service. Chris Darby Strata was not aware of the repairs having been carried out. 3. Owners did not convey any urgency to Chris Darby Strata in making the request for the gate to be repaired. 4. While the majority of property owners were not aware of the gate being manually opened and closed, Maluko, one of the property owners, and one of the unit holders of Owners, was aware. Maluko had instructed Mr Martins to open the gate at the beginning of the business day. By contrast, Chris Darby Strata was not aware that the gate was being manually opened and closed. 5. There was no evidence that Owners had contacted Chris Darby Strata during the days in which the gate was in its dangerous state, to advise that the repairer had not turned up or done anything to fix the gate. The evidence showed that there was one contact in the interim by Owners, but it was in relation to whether or not any motor vehicles damaged in the initial car accident would be covered by strata insurance.

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 Statement

The defendant was convicted at the sentence hearing on 7 August 2024.
Part 3 Division 2 of the CSP Act 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 victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement: s 30D(1).
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).
By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family. Members of a primary victim's immediate family include children and grandchildren of the deceased: s 26.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community: s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur, and I determine that it is appropriate to take the Victim Impact Statement into account.
Ms Susana Martins, the daughter of Mr Martins, read to the court her Victim Impact Statement (PX 2).
Ms Martins described the anguish caused by the unexpected death of Mr Martins, without the family having the chance to say goodbye. Ms Martins described how the family's "world was rocked to the core in an extremely difficult way" when they were told by police officers that her father had died in a workplace accident. She said that from that moment, their lives changed forever and would never be the same.
Ms Martins has experienced sleepless nights and eating problems due to stress. These impacts have created flow-on effects due to Ms Martins' pre-existing medical conditions, with Ms Martins saying that her physical health and wellbeing is suffering.
As a result of sleepless nights and the exacerbation of her medical conditions, Ms Martins described an incident where she fell asleep at the wheel of her car. Ms Martins' car was subsequently written off and she spent a night in hospital with minor injuries.
Ms Martins explained the burden she experienced being Mr Martins' only child and needing to organise his funeral by herself. Ms Martins was confronted with needing to make decisions about things she thought she "still had at least 20-30 years" to consider.
Ms Martins said that her mental and emotional health were at an extremely low point with her pre-existing mental illnesses being exacerbated after her father's death. She said that her "body felt like it was going to explode with such a huge increase in all these mental issues at the same time". Ms Martins has had to increase her medication to "simply live a somewhat normal life".
Ms Martins described the immense difficulty of "holding it all together" for her mother and other family members, describing it as "one of the hardest things" she has had to do.
Before Mr Martins' death, Ms Martins described herself as "one to socialise with friends and family, the Portuguese community with cultural functions, being a happy and social person, going to restaurants and enjoying life". After the incident this changed, and Ms Martins did not want to go anywhere or see anyone.
Ms Martins struggled, and still struggles, to accept that her "father was gone". She is "still waiting and waiting for him to come home from work". "Shock, anger, disbelief, resentment, loss, pain [and] anguish" are all part of Ms Martins' daily life now, and something she considers will "haunt" her forever. Mr Martins, whom Ms Martins described as her and her son's "male role model" was "such an important person" to Ms Martins.
Ms Martins lamented the "avoidable way" that Mr Martins died, saying that her father "should be here today, living, laughing and socialising". Mr Martins was planning his retirement and planning on travelling to Portugal to see his friends and family, including his brother who he had not seen in 40 years. Ms Martins said that "the happiness of their reunion was taken away in minutes".
Ms Martins described Mr Martins as turning up to work "rain, hail or shine" and as one who "worked like no other until his final day". Ms Martins explained Mr Martins' desire to spend more time with his family, "finally relaxing and resting after working so hard all his life". "Family was everything" to Mr Martins, with his family reciprocating his love and having "love and respect for everything he did" for them.
Ms Martins struggles to "accept the horrible way" that Mr Martins was taken from her, saying that "all I ask is that justice is found and that my father's death was not in vain".

Costs

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

Penalty

My orders are: 1. Chris Darby Strata Pty Ltd was convicted on 7 August 2024. 2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Chris Darby Strata Pty Ltd to pay a fine of $150,000. 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 Chris Darby Strata 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: 22 August 2024

At a glance

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Judgment (37 paragraphs)

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Cases Cited (30)