SafeWork NSW v CNH Management Pty Ltd

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

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: Australian Standard A54994.1:2009 Temporary Edge Protection
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 Code of Practice Managing the Risks of Falls in Housing Construction, August 2019
SafeWork NSW Information Sheet Workplace Induction for Construction Workplaces

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
CNH Management Pty Ltd (Offender)
Carlos Hadidi (Offender)

Representation: Counsel:
C Magee (Prosecutor)
T Bicanic (Offenders)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Maksisi Lawyers (Offenders)

File Number(s): CNH Management Pty Ltd
2023/451303
Carlos Hadidi
2023/451267

Publication restriction: None

JUDGMENT

Introduction

1. CNH Management Pty Ltd (CNH) appears for sentence after pleading guilty to 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. The maximum penalty for the s 32 offence is a fine of 17,315 penalty units ($1,782,579).

2. Carlos Fares Saad Hadidi 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 is a fine of 3,465 penalty units ($356,721).

Facts

3. 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

4. At all material times CNH was engaged by Built by EPS Pty Ltd (Built by EPS) as a contractor to undertake formwork, steel fixing, and concreting works for the construction of a residential duplex dwelling at 154 Kingsway, Woolooware (the site).

5. Built by EPS operated a business designing, constructing and renovating homes from its principal place of business in Croydon Park. It was engaged by Kingsway 154 Pty Ltd as the principal contractor for the construction at the site.

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

7. Mr Hadidi was a site manager of CNH. He exercised operational and financial control over CNH and made decisions that affected the whole or a substantial part of its business.

8. 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.

Relevant workers

CNH

9. Mr Anthony commenced employment with CNH as a casual labourer on 10 January 2022. Mr Hadidi directed Mr Anthony to commence work at the site over the telephone.

10. 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.

11. Toni Bou-Francis was engaged as a site 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.

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

Built by EPS

13. Peter Wahhab was a director of Built by EPS.

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

15. 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.

The site

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

Front duplex

17. The front duplex had been constructed with a ground and first-floor concrete slab without edge protection. 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).

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

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

20. 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.

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

Rear duplex

22. The rear duplex had been constructed with a ground and first-floor concrete slab without edge protection. A partially constructed concrete swimming pool was located at the rear of the rear duplex (rear duplex swimming pool).

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

24. 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 the void created by the swimming pool excavation;

25. Four uncapped reo-bars protruded upwards approximately 400 - 600mm from the edge of the rear duplex swimming pool.

Construction work

26. The construction of the front duplex swimming pool and rear duplex swimming pool occurred in mid-2021. Neither CNH nor Mr Hadidi were involved in or contracted to do any work in relation to the front duplex swimming pool and/or the rear duplex swimming pool.

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

28. In or about December 2021 formwork had been erected for the first-floor concrete slab of the front duplex by CNH. Some of the formwork was immediately above the void created by the front duplex swimming pool.

29. The site security fencing around the site was inadequate, it was missing panels, had gaps in the fencing, had inadequate fence panel footings and was not properly secured together with tie wire. There was no lock on the site entry gate, and it did not have an adequate means to prevent unauthorised access to the site.

30. There was a large amount of building materials and building waste materials scattered all around the site, which hindered the safe access to all work areas at the site. There was also a number of building equipment items located around the site that could hinder or block the safe access to, or around, the site.

31. The concrete slab on the first floor of the front duplex did not have any scaffold, handrails or other fall protection erected around the edges of the slab. The stairwell void leading from the first-floor slab to the ground floor did not have any edge protection at the top and no fencing to prevent unauthorised access to the first floor.

32. The concrete slab on the first floor of the rear duplex did not have any scaffold, handrails or other fall protection erected around the edges of the slab. The stairwell void leading from the first-floor slab to the ground floor did not have any edge protection.

The incident on 11 January 2022

33. 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).

34. 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.

35. 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.

36. 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.

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

38. On 11 January 2022 the workers returned to the site. Although no arrangements were made with Built by EPS for access to the site, the workers were able to access the site due to the absences of adequate site security fencing around the site.

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

40. At approximately 7:30am Mr Wahhab drove past the site and became aware that the 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.

41. Upon becoming aware of their presence at the site, Mr Wahhab did not prevent the workers from undertaking the work despite the site’s conditions.

42. Mr Wahhab did not check whether all the workers, in particular Mr Anthony, had been inducted into the site and had signed off CNH’s SWMH in relation to formworks.

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

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

45. 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 the void.

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

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

48. 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.

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

50. 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.

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

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

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

Injuries

54. 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.

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

Guidance materials available at the time of the incident

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

57. 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.

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

59. 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.

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

61. 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.

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

63. 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.

64. Australian Standard A54994.1:2009 “Temporary Edge Protection” provides specific information related to temporary edge protection requirements.

Systems of work prior to the incident

General induction training

65. CNH had an obligation to ensure that its workers held a General Construction Induction Card (White Card) prior to undertaking construction work, including work involving the removal of formwork. It was prohibited from directing workers to conduct construction work in circumstances where they had not completed general induction training.

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

67. At all material times Mr Anthony did not hold a White Card.

68. 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.

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

SWMS

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

71. Formwork SWMS was generic in nature and did not reflect particular risks that arose in connection with the work at the site. It did not make any reference to the particular location where the work was to be conducted. It did not address the site-specific risks relevant to the site and in particular 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. This is notwithstanding that the concrete frame of the front duplex swimming pool was installed prior to CNH first pouring the ground floor slabs at the site.

72. 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 Formwork SWMS.

73. Formwork SWMS was not signed by Mr Anthony.

74. 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. CNH did not develop, implement and enforce a site-specific SWMS that identified and addressed any such risks; 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. CNH did not develop, implement and enforce a site-specific SWMS that identified and addressed any such risks.

75. Mr Wahhab quickly 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.

Built by EPS

76. 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.

77. 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.

78. Built by EPS had a site induction procedure for workers attending the site that required workers to have a White Card.

79. Built by EPS’s system for inducting workers onto the site was not consistently implemented or enforced.

80. 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.

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

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

83. 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 form.

Steps taken after the incident

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

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

(a) installed 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.

86. 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.

87. Built by EPS also removed from the site the unused building materials and building waste materials on the ground floor of the construction site that had been blocking/hindering safe access.

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

89. 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.

90. 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.

91. In response to the incident and the Notices issued by SafeWork, CNH took the following steps:

(a) developed a WHS management plan; (b) reviewed and revised the SWMS; (c) provided general construction induction training to workers; and (d) undertook a toolbox talk to provide training to workers about the SWMS and WHS management plan.

Offenders’ Case on Sentence

92. The offender read and relied upon the affidavit of Nancy Hadidi affirmed on 2 May 2025. The following is a precis of her evidence. I will try not to repeat matters already referred to.

93. Ms Hadid originally worked in administration in the real estate industry. After she and Mr Hadidi met in 2000, they started a small business in formwork, which eventually led to the founding of CNH in October 2002.

94. CNH is a family-owned and operated business that undertakes projects across Sydney mostly in and around Greater Western Sydney.

95. CNH generally undertakes one to two projects at a time due to its limited capacity. It currently employs seven people on a regular basis and hires additional workers as needed for each project, generally on a casual basis.

96. The following is a list of WHS accreditation and industry memberships for CNH and its employees:

(a) CNH - General Concreter Licence; (b) Nancy Hadidi, director (full-time) - White Card; (c) Carlos Hadidi, supervisor (full-time) - White Card and General Concreter Licence; (d) Jamil Awkar, leading hand (casual) - White Card and General Concreter Licence; (e) Tony Arab, form worker (casual) - White Card; (f) Thamilselvan Jeyabalu, general labourer (casual) - White Card; (g) Lojan Rajendran, general labourer (casual) – White Card; (h) Joseph Massoud, general labourer (casual) – White Card; and (i) Tony Azar, general labourer (casual) – White Card.

97. While CNH has been contracted to work for a number of large construction companies such as Transfield Services and Abi Group in more recent years, the business operations have shifted back to smaller projects.

98. CNH has worked with Built by EPS and Paul Wahhab for about four years.

Remorse and contrition

99. Ms Hadidi stated in her affidavit that she, Mr Hadidi and CNH accept responsibility for their failures in ensuring a safe work environment.

100. Ms Hadidi acknowledged that they should have:

(a) known about the hazard present and should not have allowed any work to be undertaken by employees at the site until all hazards had been removed; (b) made appropriate enquiries to confirm whether Mr Anthony held a current and valid White Card and should not have permitted work to commence until they obtained the certification/training; (c) made appropriate arrangements for the induction and supervision of employees at the site; and (d) taken appropriate measures to eliminate or mitigate any risk of death or serious injury at the site.

101. Ms Hadidi stated that both she and Mr Hadidi, as well as the other employees who were at the site were quite distressed when the incident occurred.

Prior convictions

102. Ms Hadidi stated that CNH has been operating for 22 years with a very good record of compliance with the WHS laws and regulations aside from this incident.

103. The only other compliance history was in 2022, when CNH received a fine in relation to safety harnesses. The fine was paid and the issue was rectified.

104. Additionally, there was a prior WorkCover claim in relation to an employee with a back injury.

Cooperation with authorities

105. Ms Hadidi deposed that all CNH employees were made available for interviews with SafeWork and police and cooperated in every way they could with the investigations.

Safety systems after the incident

106. In response to the incident and as a result of the notices issued CNH took the following actions:

(a) developed a WHS Management Plan; (b) reviewed and revised the SWMS; (c) provided General Construction Induction training to workers; and (d) undertook a toolbox talk to train workers on the SWMS and WHS Management Plan.

107. Since the incident, CNH has placed significant focus on safety and promotion of a positive WHS culture and is committed to ensuring that this type of incident never occurs in the future.

Support for Mr Anthony

108. Ms Hadidi deposed that she, Mr Hadidi and CNH tried to provide support and comfort to Mr Anthony as much as possible.

109. She stated that as soon as she was informed of the incident, she attended the site immediately, cooperated with police and arranged to close the site. She then went straight to the hospital and stayed there to assist Mr Anthony as he did not have any immediate family in Australia. Mr Hadidi, who was overseas vising his ill father, also returned to Australia immediately.

110. She stated that she and Mr Hadidi communicated with Mr Anthony during and subsequent to his hospital stay. She also drove him to and attended various follow-up appointments with health professionals in the months after the incident.

111. Furthermore, Ms Hadidi stated that she and Mr Hadidi contacted Mr Anthony’s family in Sri Lanka and offered assistance to them through a former worker of CNH.

Consideration

112. 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

113. The offences involve some objective gravity.

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

CNH

115. In relation to the s 32 offence, CNH was responsible for the health and safety of its workers so far as reasonably practicable. 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 CNH. The need for appropriate systems, induction and risk assessment was also known, but poorly addressed. There was a large volume of guidance material available to CNH at the time of the incident suggesting the provision of general construction induction training, risk management in relation to slips, trips and falls and more. By its plea of guilty CNH admitted that it should have required Built by EPS to cover the front duplex swimming pool, had adequate systems in place, inducted the workers accordingly and ensured the site was free of hazards and risks. 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 CNH. The pleaded risk included a risk of death. The injuries sustained by Mr Anthony were serious and are an aggravating feature of the offence.

Mr Hadidi

116. As an officer of CNH, Mr Hadidi failed to exercise due diligence to be aware of the control measures and systems that should have been implemented by CNH prior to the incident, to ensure the safety of its workers, in so far as that was reasonably practicable. The s 27(1) 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 CNH could have implemented. Mr Hadidi should have consulted and implemented the control measures referred to in the guidance material and implemented a system of work to control the site-specific risks.

Deterrence

117. 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].

118. There is some need for specific deterrence in this case. CNH still operates a business that potentially exposes workers to risks as a result of its operation. Mr Hadidi still manages its day-to-day functions. Conversely, CNH has taken remedial steps to improve its processes and safety system as a result of the incident.

Aggravating factors

119. 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

120. The offenders do not have any record of previous convictions: s 21A(3)(e) Crimes *(*Sentencing Procedure) Act 1999. CNH has been operating its business since 25 October 2002. Mr Hadidi was 49 years of age at the time of the incident.

121. Mr Hadidi was a person of good character in that he had no prior convictions for any offence: s 21A(3)(e) Crimes *(*Sentencing Procedure) Act 1999.

122. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes *(*Sentencing Procedure) Act 1999. CNH has taken steps to respond to the incident and has demonstrated that it has good prospects of rehabilitation.

123. 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%.

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

Proposed project and training orders

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

126. As to the WHS Project Order, the prosecutor sought a financial contribution from CNH 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.

127. I note that the same WHS Project Order was sought against Built by EPS, the co-offender.

128. As to the Training Orders, the prosecutor sought that Mr and Ms Hadidi 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.

129. 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.

130. 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. The same orders were sought against the co-offender and it is possible that the cost of the animation could be as much as or more than $60,000. If that was so, then there would be less utility in making the WHS Project Order against one of the co-offenders only. In this case, CNH is unlikely to be able to pay the sum sought in the WHS Project Order. In all of the circumstances, I cannot be satisfied that the animation will be produced and published within a reasonable timeframe.

131. As to the Training Order sought for Mr and Ms Hadidi, I have grave doubts that they will continue to operate CNH because it is unlikely to remain solvent. Further, I am not satisfied that the offenders collectively have the capacity to pay for the Training Orders sought.

Capacity to pay a fine

132. 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.

133. Mr and Ms Hadidi were previously involved with another company, Twobuild Australia Pty Ltd (Twobuild). In February 2024 the Australian Taxation Office (ATO) issued an assessment disallowing previously claimed GST credits and imposing a penalty for a tax shortfall in the sum of $1,884,839 and a further personal director penalty of $372,382 for which Mr and Ms Hadidi were jointly and severally liable with their partner in Twobuild. Assets of Twobuild and Mr and Ms Hadidi were sold and they refinanced their home to pay the ATO and the debts have been cleared. Mr and Ms Hadidi were advised to stall the lodgment of further tax returns for CNH and personally, until the debt to the ATO was paid. As a result, CNH and Mr and Ms Hadidi have not lodged a tax return since 2022.

134. For the 2022 financial year, CNH recorded a loss of $1,174,533. The 2023 and 2024 returns are in the process of being prepared. Ms Hadidi estimates that the financial viability of CNH has not improved since that time.

135. The estimated income for Mr Hadidi in each of 2023 and 2024 financial years is $52,000.

136. Ms Hadidi has recently taken up paid employment in logistics to help pay the bills. She is presently earning $75,00 per annum in that employment.

137. The evidence presented by the offenders on capacity to pay is inadequate. I suspect that the true position is that CNH is insolvent. On the other hand, I accept that Mr Hadidi’s income is modest and in the range estimated by Ms Hadidi.

138. The offences are serious and there is a need for general deterrence. I am not satisfied that I should reduce the fine imposed on CNH by reason of its capacity to pay. I will reduce the fine to be imposed on Mr Hadidi.

Parity

139. I have had regard to parity in so far as it is applicable in this case. In my view, CNH and Mr Hadidi were more culpable for the failures that led to Mr Anthony’s injury. CNH had immediate control of the work and the systems employed. CNH knew that Mr Anthony did not have a White Card and that its workers were not properly inducted to the site.

Penalty – CNH Management Pty Ltd

140. CNH Management Pty Ltd is convicted.

141. The appropriate fine for the s 32 offence is $300,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $225,000.

Penalty – Carlos Fares Saad Hadidi

142. Carlos Fares Saad Hadidi is convicted.

143. The appropriate fine for the s 32 offence is $50,000 that will be reduced by 25% to give effect to the plea of guilty and further to reflect his limited capacity to pay a fine. I impose a fine of $20,000.

Other orders

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

145. 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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