SafeWork NSW v Form Group NSW Pty Ltd

District Court of NSW|2024-09-11

Background

The defendant's business involved concrete construction services (formwork) and was a subcontractor of a project called "Project Costello" (the Project) involving the construction of 135 residential units at premises located at 361-363 Bernera Road, Edmundson Park, New South Wales (the Site). The Site contained three buildings under construction, known as buildings A, B and C, and the area between these three buildings was known as the "laneway" (the laneway).
The principal contractor of the Project was Aland B & W Pty Ltd (Aland). Aland's business involved the construction of residential and commercial buildings. The defendant was engaged by Aland to construct, install and dismantle formwork at the site, including the installation of wall framing systems known as Dincel.
Alex Meoushy (Mr Meoushy) was engaged by Aland as site manager and had complete or partial control of the Site. Aland's safety manager, Greg Moffat (Mr Moffat), reported to Mr Meoushy.
GRD Group Pty Ltd (GRD) carried on a business or undertaking involving the supply of concrete construction services (formwork) and was engaged as a specialist subcontractor to install Dincel at the Site. Mohammad Hoque (Mr Hoque) was employed by GRD and directed by GRD to attend the Site to install Dincel. Mr Hoque was 58 years old the time of the incident. He commenced working at the Site on 20 August 2020. He received directions from the defendant at the beginning of each day as to the work to be performed at the Site. Mr Hoque spoke Bengali and had a limited understanding of written or spoken English.
GRD appointed Abdul Kalam (Mr Kalam) to supervise its workers and to act as an informal interpreter for workers who had difficulty with the English language. The role of the GRD supervisor was to communicate with the defendant's supervisor and site foreman, Maher Mansour (Mr Mansour).
Alpha Crane Management Pty Ltd (Alpha Cranes) carried on a business or undertaking involving the provision of crane services. Alpha Cranes was engaged by Aland to provide crane services at the Site. This involved the provision of labour for crane operations, specifically crane operators and dogmen.
Glenn Page (Mr Page) was engaged by Alpha Cranes to undertake dogging work at the Site. Mr Page held a high risk work licence to undertake dogging work for tower cranes and had approximately three to four years' experience as a dogman as at the time of the incident.

The Work

The project involved the construction of a five-storey residential use development, comprising of 135 units and two levels of basement.
On or around 17 July 2020, Aland commenced work at the Site. On 20 July 2020, a 14-tonne luffing tower crane, model LR 213 bearing serial number 14273 (the crane) was installed and commissioned on the Site by Strictly Cranes Pty Ltd (Strictly Cranes).
Approximately four days prior to the incident, bundles of six-metre steel reinforcement bars (the load) were delivered to the Site to be moved by the crane to their required location. Due to windy conditions, this could not occur at the time of delivery. Mr Page and crane operator Mohammed Zoulfikar (Mr Zoulfikar) were therefore instructed by Mr Meoushy to delay the lift until the windy conditions had subsided.
On the day prior to the incident, Mr Hoque and another GRD worker Mohammad Osmand (Mr Osmand) had commenced work on a Dincel wall system in a section of Building C.

The Incident

At approximately 7.00am on 24 August 2020, a concrete boom placement truck (concrete truck) arrived at the Site and followed the direction of Mr Meoushy to park in the laneway. The cabin of the concrete truck was approximately two metres away from Building A and was situated approximately three to four metres from the crane.
At approximately 7.00am, Mr Hoque and Mr Osmand resumed their work on the Dincel wall system from the previous day, positioned in the laneway. Mr Kalam, the GRD supervisor, did not attend the Site. Mr Osmand was therefore directly supervising the GRD workers on instructions and directions received from Mr Mansour, the supervisor and site foreman of the defendant.
On this morning, Mr Meoushy directed Mr Page and Mr Zoulfikar to lift the load approximately two metres from ground level to an elevated deck (the lift). The load was pre-slung, weighed between two to four tonnes and had to be carefully manoeuvred around the concrete truck to avoid contact given its close proximity.
At approximately 7.30am, Mr Page hooked up the load. He was positioned between Building C and the load. Mr Page states he did not see any workers in the laneway and subsequently directed Mr Zoulfikar via two-way radio to commence the lift, ensuring the load travelled slowly at walking pace. Mr Page had one hand on the load in order to avoid scratching the concrete truck. A moment later, Mr Page states he looked up and saw Mr Hoque standing in front of Building C. Mr Page then yelled at Mr Hoque to move out of the way. It is at this time that Mr Zoulfikar lost control of the load.
The load swung in a pendulum motion and struck Mr Hoque on the right side of his torso, lifting him off the ground and pinning him to the formwork deck for approximately 10-60 seconds until he was pulled to the ground by nearby workers.

Post-Incident Events

Following the incident, Mr Hoque was placed on top of a pile of steel reinforcement bars on the ground near to where he was injured.
At approximately 7.36am, Mr Moffat, Aland's safety officer, called NSW Ambulance to request an ambulance to attend the site. Mr Meoushy then briefly observed Mr Hoque's condition and asked Mr Moffat to cancel the ambulance. Mr Meoushy had formed the view that Mr Hoque was not seriously injured and therefore not in need of an ambulance as he did not have any visible signs of injury.
Sometime after 8.57am, Mr Hoque was carried by workers at the Site on a makeshift timber stretcher to the Site's first aid shed. At this time, Mr Meoushy decided that an ambulance should be called, and Mr Moffat made the call to NSW Ambulance at 9.05am again requesting an ambulance to attend the site. Mr Hoque remained in the first aid room until the ambulance arrived approximately 25 minutes later.
At approximately 11.16am, Mr Moffat notified SafeWork NSW of the incident, reporting it to have occurred around 9.00am.

Injuries

Mr Hoque was admitted to Liverpool Hospital on 24 August 2020 and discharged on 29 August 2020, sustaining the following injuries: 1. Multiple segmental fractures to his right 8th to 12th ribs. 2. Haematuria. 3. Torn rotator cuff requiring surgical repair. 4. Lower back injury.
As at 13 May 2021, Mr Hoque was still receiving treatment for his injuries and was declared unfit to return to work in any capacity by his medical practitioner.

Relevant Legislation and Guidance Materials

Section 46 of the WHS Act provides: 46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.
Referring to s 46 of the WHS Act, the SafeWork NSW Code of Practice Construction Work (August 2019) states at p 14: "Since various contractors and subcontractors work on the same construction site, their activities are likely to overlap and interact with each other. They each have a duty to protect the health and safety of workers and other persons at the workplace and must therefore consult, cooperate and coordinate activities to ensure each person is made aware of what the others are doing, to identify the hazards and risks and decide who is best placed to take action to control the risks."
The Australian Standard 2550.1.11: Crane, hoists and winches - Sale Use (AS2550.1.11) states at 6.9: "Personnel should not approach a crane when it is operating or travelling as there is a danger that they may be struck by the crane or load ... barricades or guarding shall be provided where necessary. When loads have to be handled in the vicinity of persons ... the crane operator shall be alert to the possibility of persons being trapped and injured by the movement of the crane or load and exercise caution ..."
Safe Work Australia's General Guide for Cranes, dated December 2015, states at p 12: "Exclusion zones should be established around cranes and adjoining areas to stop people entering the area and risk being injured by the crane or falling objects. The size of the exclusion zone should be based on a risk assessment."

Systems of Work before the Incident

At the time of the incident, an adequate exclusion zone was not in place in relation to the crane. Neither Aland nor the crane operators told or warned the defendant, its supervisors, Mr Hoque or Mr Osmand that the load would be lifted by the crane in the area which they were working.
On the day of the incident, Aland relied on an informal system of work where dogmen would establish and maintain exclusion zones by verbally instructing other workers to move out of the crane area.
Aland had a subcontractor agreement with Alpha Cranes (the subcontractor agreement) which required Alpha Cranes to ensure an exclusion zone was in place for every load carried by the crane at the Site. Aland failed to enforce this agreement, and further had reviewed and accepted a Safe Work Method Statement (SWMS) submitted by Alpha Cranes without any reference to exclusion zones or requirement of their use.
Aland conducted toolbox talks every Tuesday in English covering operational and safety topics, including "Be aware cranes are working overhead". Mr Hoque was not working at the Site on any day a toolbox talk was held. Site induction and training provided to workers by Aland was also conducted in English. Workers were required to sign a Site Induction Form (SIF) confirming they had read and understood the Site's SWMS and that they would comply with the Site's work health and safety rules and emergency procedures. Mr Hoque states that he did not understand the contents of the SIF due to his limited proficiency in English, and its contents were not explained to him, but he was nonetheless directed by Aland to sign the SIF.
Aland did not undertake a formal risk assessment of the lift. Mr Meoushy, as Aland's site manager, failed to ensure an exclusion zone was established prior to the lift. He failed to inform subcontractors, including the defendant, that crane works would be carried out in the laneway on 24 August 2020. He failed to supervise the laneway to ensure workers did not enter the area of influence of the crane during the lift.
Alpha Cranes failed to ensure an exclusion zone was in place for every lift, a requirement of the subcontractor agreement. Mr Page was not shown the subcontractor agreement by Alpha Cranes. Mr Page did not implement the use of taglines to control the load on the day of the incident despite the measure appearing in Alpha Cranes' SWMS. He claims to have inspected the area prior to the commencement of the lift without observing any workers. This stands in contrast to Mr Zoulfikar, who claims he observed formworkers in the area immediately prior to the lift, approximately five to six metres from the load.
Mr Page was inducted by Aland and on 20 August 2020 signed Aland's SIF confirming he understood the Site's work health and safety rules and had read and understood the Site's SWMS. He was also inducted on Strictly Cranes' SWMS which identified the hazard of "Impact with moving plant and machinery", providing control measures including "Ensure the use of barriers and signage". The SWMS also identified the following control measures applicable when "working around concrete placing booms": "When concrete pumps are being operated, ensure work zones are demarcated and barriers are erected according to the site specific needs and tasks undertaken. Where practicable, crane should not be operated whilst concrete pumping is occurring. If this is not practicable or considered necessary, then the crane spotter/dagger should maintain visual contact with the concrete pump operator and the pour area Communication mechanism (2 way radio) to be in place with the crane operator and spotter."
The defendant had in place a site-specific SWMS dated 16 June 2020, identifying the hazard of "workers being struck by mobile plant/slew of the crane directly over workers/working under suspended loads". The SWMS also contained control measures for workers to follow relating to this hazard.
The defendant did not enforce this SWMS at the Site. A copy of the SWMS was not provided to Mr Hoque, nor was any training provided to Mr Hoque by the defendant despite Mr Hoque being under the supervision and direction of the defendant whilst he was undertaking work at the Site. At the time of the incident, Mr Hoque was being supervised by Mr Mansour, the defendant's supervisor.

Systems of Work After the Incident

On 24 August 2020, SafeWork NSW issued a Prohibition Notice to Aland requesting that they cease all crane operations until a safe system of work was developed. Aland took action to comply with the Prohibition Notice and engaged a consultant to assist with its WHS systems.
Following the incident, the defendant conducted a toolbox talk with workers on 25 August 2020 highlighting the incident and reminding workers of the risks and control safety measures to be adopted while on the Site.
On 31 August 2020, the defendant also conducted a review of the controls when working around cranes/plant in its SWMS to determine whether immediate changes were necessary.
On 25 August 2020, SafeWork NSW issued an Improvement Notice to Alpha Cranes, which it complied with.

The Duty

The defendant had a duty under s 19(1) of the WHS Act, to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Hoque, while they were at work in the business or undertaking.

The Risk

The risk was the risk to workers, in particular Mr Hoque, suffering serious injury or death as a result of being struck, or crushed, or otherwise coming into contact with, objects, namely steel reinforcement bars, being moved by the crane.
The significant injuries sustained by Mr Hoque on 24 August 2020, including multiple, segmental fractures to his ribs, were a manifestation of the risk.

Sentencing

The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
The court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) which include: 1. Section 3A which sets out the purpose of sentencing. 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing. 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: "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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement."

Objective Seriousness of the Offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]: "…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 offending."
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.
The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading "Assessment of Risk" said at [34]: "The sentencing judge commenced his consideration with the proposition that '[g]reater 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 upon an assessment of all those factors."
His Honour further observed at [42]: "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 pressure event of the force 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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known."
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.
The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include: 1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City Drilling at [34]. 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34]. 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53]. 4. Whether the risk was known or ought reasonably to have been known to or identified by the offender. 5. Whether the risk was an obvious or clear one. 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]: "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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken."

Matters are Relevant to Determining the Culpability of the Defendant

The risk was not simply foreseeable, it was foreseen. The defendant's SWMS had made specific reference to the need to ensure workers were not within the slew of a crane.
By not ensuring that the workers knew not to work near cranes during lifts, meant that workers were exposed to a risk and that risk manifested when Mr Hoque was struck.
The construction industry is a notoriously dangerous industry in part because the industry involves the interaction of humans with large and heavy machinery and items. These present circumstances highlight the need for caution on construction sites, including the obvious need to ensure people are not put in harm's way when moving heavy items around a site.
The existence of a SWMS whereby the worker was not trained in its contents demonstrates a paper system not being utilised.
The plea of guilty represents an acknowledgment of its failures which gave rise to Mr Hoque being exposed to the risk, and of the manifestation of that risk in the serious injuries he sustained.
The admitted admissions of the defendant are contained in par 13 of the AS. The particularised measures are admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, that gave rise to Mr Hoque being exposed to the risk to his health and safety.
I accept that the works being performed by the defendant at Aland's request was conventional work using formwork materials such as frames for bracing, and timber bearers/joists and plywood, to erect horizontal decks.
The incident was in fact a result of Aland and Alpha Cranes introducing a crane and load into an area in which the defendant's workers were operating and moving it to within six to nine metres of where Mr Hoque was standing. Aland and Alpha Cranes did so without first establishing an exclusion zone.
The defendant had a SWMS in place prior to the incident. Controls included continuous supervision, and the observance of exclusion zones. The principal contractor, Aland, had approved the defendant's SWMS.
Under the agreed safety management processes at the Site, Aland was principally responsible for the managing of the risks associated with moving the cranes. Aland and Alpha Cranes were responsible for establishing exclusion zones, and managing risks associated with the movement of cranes. Aland's system of work also required it and/or Alpha Cranes to inform the defendant if the crane was going to enter that part of the Site which could affect its workers. Yet, the defendant had not been informed that a crane movement would be taking place in an area where the work was being performed.
The defendant had engaged Mr Hoque (through GRD), and GRD engaged Abdul Karam (Mr Karam) to supervise workers. Regrettably, Mr Karam did not attend the Site on the day of the incident. In the absence of Mr Karam, Mr Osman was responsible for supervising workers, and although he was in the work area at the time, he was focused on cutting Dincel at the time of the incident.
In SafeWork NSW v Dynamic Formwork Group Pty Ltd [2022] NSWDC 11, his Honour Judge Russell SC DCJ held at [19] that it is appropriate to take into account the omissions of others on a site and the contribution they make to the creation of the risk. I accept that the fundamental omission by Aland and Alpha Cranes to inform the defendant that the crane would be operating in close proximity to its workers, and to establish the exclusion zone before doing so, made a significant contribution to the creation of the risk. I have taken this point into consideration in coming to my determination.

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: "[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable."
General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and working, in particular with cranes, and bundles of steel reinforcement bars, which the industry itself would be described as hazardous.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.
However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this 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] (Hidden J, McColl JA and Levine J agreeing).
I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: "We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question."
The defendant has been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is not entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.
I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contribute to the community: s 21A(3)(f) of the Sentencing Act
I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all - it had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the installation tasks.
I accept that the defendant has demonstrated a very strong commitment to workplace safety, and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.
The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.
The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

Capacity to Pay

Section 6 of the Fines Act 1996 (NSW) provides as follows: "6 Consideration of an accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount."
The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24].
The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]: "The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): "It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201." [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): "... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76)." However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty … When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ..." [85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: "Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86."'"
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."
I accept this authority is relevant to these proceedings. The company consisted of four family members and has endured some financial hardship, and could not be described as a "large corporation".
The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that: "It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty."
It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the court has determined the appropriate fine(s).
I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows: 1. The financial position and means of a defendant should be taken into account when determining the fine to be imposed. 2. The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that it does not have the capacity to meet a fine. 3. It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be undertaken. 4. It is for the prosecutor to check the information provided by the defendant and to assist the Court in relation to the assessment of the defendant's capacity to pay. 5. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].
The defendant tendered evidence setting out its financial position, and I accept that such evidence reflects a limited capacity to pay a fine. That evidence demonstrates that during 2020 and 2021, as a result of the COVID-19 pandemic, the defendant experienced a substantial decline in annual turnover. The subsequent destabilisation of the global supply chain and effects of inflation on the building and construction industry, I accept, has adversely affected the defendant's business and ability to make a financial return from extant contract. I further accept that a large fine would be detrimental to the ongoing survival of the defendant as it does not have spare funds and is operating at a loss. Such fine may result in the defendant becoming insolvent, or I accept, may have to terminate workers.
The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).
However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.
On the basis of the totality of the documents before me, I propose to exercise my discretion under s 6 of the Fines Act, and afford the defendant some leniency.
The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the "normal" rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.
The court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $300,000 and that will be reduced by 25% to reflect the plea of guilty, leaving a fine of $225,000. 3. In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine will be reduced by 20%. 4. Accordingly, I order the defendant to pay a fine of $180,000. 5. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 6. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

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: 28 November 2024

R v Youkhana [2004] NSWCCA 412 Rahme v R (1989) 43 A Crim R 81 SafeWork NSW v Dynamic Formwork Group Pty Ltd [2022] NSWDC 11 SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 Texts Cited: SafeWork NSW Code of Practice Construction Work (August 2019) Safe Work Australia's, General Guide for Cranes, dated December 2015 Australian Standard 2550.1.11: Crane, hoists and winches - Sale Use Category: Sentence Parties: SafeWork NSW (Prosecutor) Form Group NSW Pty Ltd (Defendant) Representation: Counsel: D Nagle (Prosecutor) B Eurell (Defendant)

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